Robert H. Dudley,
Justice.
Damien Echols and Jason
Baldwin were convicted of the capital
murders of Michael Moore, Christopher Byers, and Steve
Branch. For
each of the capital murders, appellant Echols was
sentenced to
death, and appellant Baldwin was sentenced to life
imprisonment
without parole. Both appellants appeal from their
convictions.
Echols separately appeals the death sentences imposed
upon him. We
affirm in full the judgments of conviction.
Michael, Christopher, and
Steve were eight years old, in the
second grade, in the same Cub Scout troop, and often
played
together in their West Memphis neighborhood. On the
afternoon of
May 5, 1993, after school, Michael and Steve were
riding their
bicycles while Chris was skateboarding. Deborah
O'Tinger saw the
three boys walking through her yard between 5:45 and
6:00 that
afternoon. Her recollection was that they were pushing
a bicycle. At about 6:00 p.m., Dana Moore, Michael's
mother, saw the three
boys together. At that time Michael was riding his
bicycle. Between 6:30 and 6:45 Brian Woody saw four
boys going into some
woods known as the Robin Hood woods. He noticed that
two of the
boys were pushing bicycles, one had a skateboard, and
a fourth one
was just walking behind them. Neither Michael,
Christopher, nor
Steve returned to their homes. Their parents called
the police,
and a search was begun.
The next morning, members of
the Crittenden County Search and
Rescue Unit discovered a tennis shoe floating in a
ditch just north
of Ten Mile Bayou. The Robin Hood woods drain into Ten
Mile Bayou,
and the members of the search unit knew the boys were
last seen in
that area. Detective Mike Allen walked along the ditch
bank to the
place where the tennis shoe had been found. He noticed
that one
area of the ditch bank was cleared of leaves, while
the rest of the
bank was covered with leaves and sticks. He described
the cleared
area on the bank as being "slick," but having "scuffs"
in the
cleared-off area. He got into the water, reached down
to get the
shoe, and felt Michael Moore's body. The corpses of
Christopher
Byers and Steve Branch were subsequently found about
twenty-five
feet downstream. Policeman John Moore, who was also
there, said
there was blood in the water, but none on the bank.
Detective Bryn
Ridge was also present and helped recover the boys'
bodies. He
collected the victims' clothes, three tennis shoes,
and a Cub Scout
cap that was floating in the water. He found a stick
stuck in the
mud that had one of the boy's shirts wrapped around
the end that
was stuck down in the mud. He dislodged another stick
as he was
removing the corpse of Michael Moore.
All three corpses had their
right hands tied to their right
feet, and their left hands tied to their left feet.
Black shoe
laces and white shoe laces were used as ligatures.
Michael Moore's
body had wounds to the neck, chest, and abdominal
regions that
appeared to have been caused by a serrated knife.
There were
abrasions over his scalp that could have been caused
by a stick.
Dr. Frank Peretti, a State medical examiner, testified
that there
was bruising and discoloring comparable to that
frequently seen in
children who are forced to perform oral sex. He
testified that
there were defensive wounds to the hands and arms.
Moore's anal
orifice was dilated, and the rectal mucosa was
reddened. Dr.
Peretti testified this injury could have come from an
object being
placed in the anus. Finally, Dr. Peretti testified
that there was
evidence that Moore was still alive when he was in the
water, as
there was evidence of drowning.
Steve Branch's corpse had head
injuries, chest injuries,
genital-anal injuries, lower extremity injuries, upper
extremity
injuries, and back injuries. The body had multiple,
irregular,
gouging wounds, which indicated that he was moving
when he was
stabbed. The anus was dilated. Penile injuries
indicated that
oral sex had been performed on him. There was also
evidence that
he, too, had drowned.
Christopher Byers's corpse
also had injuries indicating that
he had been forced to perform oral sex. His head had
scratches,
abrasions, and a punched-out area on the skin, and one
eyelid had
a contusion. The back of the neck had a scrape. The
inner thighshad diagonal cuts on them. The back of the
skull had been struck
with a stick-like, broomstick-size, object. The skin
of the penis
had been removed, and the scrotal sac and testes were
missing. There were cuts around the anus, and the
hemorrhaging from those
cuts indicated he was still alive when they were made.
Many of the
cuts were made with a serrated blade knife. Byers did
not drown;
he bled to death.
The boys' bicycles were found
nearby.
On May 10, four days after the
bodies were found, the police
had not solved the cases. When Detective Bryn Ridge
questioned
Echols, he asked him how he thought the three victims
died. Ridge's description of Echols's answer is
abstracted as follows:
He stated that the boys
probably died of mutilation, some guy
had cut the bodies up, heard that they were in the
water, they
may have drowned. He said at least one was cut up more
than
the others. Purpose of the killing may have been to
scare
someone. He believed that it was only one person for
fear of
squealing by another involved.
At the time Echols made the statement, there was no
public
knowledge that one of the children had been mutilated
more severely
than the others.
On June 3, or almost one month
after the murders, Detective
Mike Allen asked Jessie Lloyd Misskelley, Jr., about
the murders. Misskelley was not a suspect at the time,
but Echols was, and it
was thought that Misskelley might give some valuable
information
about Echols. Detective Allen had been told all three
engaged incult-like activities. Misskelley made two
statements to the
detective that implicated Echols and Baldwin, as well
as himself. The statements can be found in Misskelley
v. State, 323 Ark. 449,
459-61, 915 S.W.2d 702, 707-08 (1996).
Misskelley, age seventeen,
Echols, age nineteen, and Baldwin,
age sixteen, were jointly charged with the capital
murders of
Moore, Byers, and Branch. Misskelley moved for a
severance from
Echols and Baldwin, and the trial court granted the
severance. Misskelley was tried and convicted of
first-degree murder in the
death of Michael Moore, and second-degree murder in
the deaths of
Steve Branch and Christopher Byers. The judgments of
conviction
were affirmed. Misskelley v. State, 323 Ark.
449, 915 S.W.2d 702
(1996). Appellants Echols and Baldwin were jointly
tried in this
case. In the guilt-innocence phase of the trial, the
jury found
both Echols and Baldwin guilty of the capital murders
of all three
victims. In the penalty phase of the trial, the jury
imposed death
as the punishment for Echols and fixed life
imprisonment without
parole as the punishment for Baldwin. The trial court
entered
judgments of conviction that imposed the sentences set
by the jury. Echols's and
Baldwin's arguments together contain forty-four
points of appeal, and some of those points have
subpoints. Some of
the points of appeal are made jointly by both
appellants, but many
are individual arguments. For clarity, we group the
arguments into
seven general categories.

Sufficiency of the Evidence Arguments

Echols questions the
sufficiency of the evidence to convicthim of the three
capital murders. In one of his arguments, he
contends that for circumstantial evidence to be
sufficient, it must
exclude every reasonable hypothesis, and cites as
authority Traylor
v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).
Before narrating
the testimony of his guilt, we again emphasize, as we
have often
done, that although the jury should be instructed, as
it was here,
that circumstantial evidence must be consistent with
the guilt of
the defendant and inconsistent with any other
reasonable
conclusion, AMI Crim. 106, this is not the standard by
which we
review the evidence. Our responsibility is to
determine whether
the verdict is supported by substantial evidence,
which means
whether the jury could have reached its conclusion
without
resorting to speculation or conjecture. Cassell v.
State, 273 Ark.
59, 616 S.W.2d 485 (1981). The jury must be convinced
of the
accused's guilt beyond a reasonable doubt, but we, not
having had
the advantage of seeing and hearing the witnesses, are
guided by
the substantial evidence rule. Cassell, 273
Ark. at 62, 616 S.W.2d
at 486-87.
Moreover, two witnesses
testified that they overheard Echols
state that he killed the three boys, and this was
direct evidence. A confession is sufficient to sustain
a conviction if it is
accompanied by other proof that the offense was
committed by
someone. Ark. Code Ann. § 16-89-111 (1987); Leshe
v. State, 304
Ark. 442, 304 S.W.2d 522 (1991).
The substantial evidence of
Echols's guilt is as follows.
Anthony and Narlene Hollingsworth were well acquainted
with Echolsand testified that they saw Echols and his
girlfriend, Domini Teer,
walking after 9:30 on the night of the murders near
the Blue Beacon
Truck Stop, which is near Robin Hood woods where the
bodies were
found. The witnesses testified that Echols had on a
dark-colored
shirt and that his clothes were dirty. This evidence
placed Echols
in dirty clothes near the scene at a time close to the
murders. Although not material to this point, other
evidence established
that Domini Teer might be confused with Baldwin as
both had long
hair and were of slight build.
Twelve-year-old Christy
VanVickle testified that she heard
Echols say he "killed the three boys."
Fifteen-year-old Jackie
Medford testified that she heard Echols say, "I killed
the three
little boys and before I turn myself in, I'm going to
kill two
more, and I already have one of them picked out." The
testimony of
these two independent witnesses was direct evidence of
the
statement by Echols. These witnesses were
cross-examined by
Echols's counsel, and it was the jury's province to
weigh their
credibility.
Lisa Sakevicius, a criminalist
from the State Crime
Laboratory, testified that she compared fibers found
on the
victim's clothes with clothing found in Echols's home,
and the
fibers were microscopically similar.
Dr. Frank Peretti, a State
Medical Examiner, testified that
there were serrated wound patterns on the three
victims. On
November 17, 1993, a diver found a knife in a lake
behind Baldwin's
parents' residence. The large knife had a serrated
edge and hadthe words "Special Forces Survival Roman
Numeral Two" on the blade. Dr. Peretti testified that
many of the wounds on the victims were
consistent with, and could have been caused by, that
knife.
Deanna Holcomb testified that
she had seen Echols carrying a
similar knife, except that the one she saw had a
compass on the
end. James Parker, owner of Parker's Knife Collector
Service in
Chattanooga, Tennessee, testified that a company
distributed this
type of knife from 1985-87. A 1987 catalog from the
company was
shown to the jury, and it had a picture of a knife
like the knife
found behind Baldwin's residence. The knife in the
catalogue had
a compass on the end, and it had the words "Special
Forces Survival
Roman Numeral Two" on the blade. The jury could have
made a
determination whether the compass had been unscrewed,
and, in
assessing the probativeness of the location of the
knife introduced
at trial, heard ample evidence that Echols and Baldwin
spent much
time together. Therefore, it could have reasonably
concluded that
Echols or Baldwin disposed of the knife in the lake.
The State's theory of motive
was that the killings were done
in a satanic ritual. On cross-examination, Echols
admitted that he
has delved deeply into the occult and was familiar
with its
practices. Various items were found in his room,
including a
funeral register upon which he had drawn a pentagram
and upside-down crosses and had copied spells. A
journal was introduced, and
it contained morbid images and references to dead
children. Echols
testified that he wore a long black trench coat even
when it was
warm. One witness had seen Echols, Baldwin, and
Misskelleytogether six months before the murders,
wearing long black coats
and carrying long staffs. Dr. Peretti testified that
some of the
head wounds to the boys were consistent with the size
of the two
sticks that were recovered by the police.
Dr. Dale Griffis, an expert in
occult killings, testified in
the State's case-in-chief that the killings had the
"trappings of
occultism." He testified that the date of the
killings, near a
pagan holiday, was significant, as well as the fact
that there was
a full moon. He stated that young children are often
sought for
sacrifice because "the younger, the more innocent, the
better the
life force." He testified that there were three
victims, and the
number three had significance in occultism. Also, the
victims were
all eight years old, and eight is a witches' number.
He testified
that sacrifices are often done near water for a
baptism-type rite
or just to wash the blood away. The fact that the
victims were
tied ankle to wrist was significant because this was
done to
display the genitalia, and the removal of Byers's
testicles was
significant because testicles are removed for the
semen. He stated
that the absence of blood at the scene could be
significant because
cult members store blood for future services in which
they would
drink the blood or bathe in it. He testified that the
"overkill"
or multiple cuts could reflect occult overtones. Dr.
Griffis
testified that there was significance in injuries to
the left side
of the victims as distinguished from the right side:
People who
practice occultism will use the midline theory,
drawing straight
down through the body. The right side is related to
those thingssynonymous with Christianity while the
left side is that of the
practitioners of the satanic occult. He testified that
the clear
place on the bank could be consistent with a ceremony.
In sum, Dr.
Griffis testified there was significant evidence of
satanic ritual
killings.
Lisa Sakevicius, the
criminalist who testified about the
fibers, stated that Byers's white polka-dot shirt had
blue wax on
it and that the wax was consistent with candle wax.
Detective Bryn Ridge testified
that Echols said he understood
the victims had been mutilated, with one being cut up
more than the
others, and that they had drowned. Ridge testified
that when
Echols made the statement, the fact that Christopher
Byers had been
mutilated more than the other two victims was not
known by the
public. The jury could have reasonably concluded that
Echols would
not have known this fact unless he were involved in
some manner.
Echols took the witness stand,
and his testimony contained
additional evidence of guilt. When asked about his
statement that
one victim was mutilated more than the others, he said
he learned
the fact from newspaper accounts. His attorney showed
him the
newspaper articles about the murders. On
cross-examination, Echols
admitted that the articles did not mention one victim
being
mutilated more than the others, and he admitted that
he did not
read such a fact in a newspaper.
The foregoing, together,
constitutes substantial evidence of
the guilt of Damien Echols.
Jason Baldwin does not contend
that there was insufficientevidence of his guilt. This
is, perhaps, in part, because of the
testimony of Michael Carson, who testified that he
talked to
Baldwin about the murders. Carson's testimony, in
pertinent part,
was abstracted as follows:
I said, just between me and you, did you do it. I
won't
say a word. He said yes and he went into detail about
it. It was just me and Jason [Baldwin]. He told me he
dismembered the kids, or I don't know exactly how many
kids. He just said he dismembered them. He sucked the
blood from the penis and scrotum and put the balls in
his
mouth.
Echols, in another argument
relating to sufficiency of the
evidence, contends that the verdict in the penalty
phase was
erroneous because the jury refused to find, as a
mitigating
circumstance, that he had no prior history of criminal
activity.
The jury was given AMI Crim. 1509, which included the
mitigating
circumstance of no significant prior history of
criminal activity. It is important to note that this
mitigating factor is set out as
"no significant prior history of criminal activity,"
and not "no
significant prior history of prior convictions." Ark.
Code Ann. §
5-4-605(6) (Repl. 1993). The jury found that Baldwin
had no
significant history of criminal activity, but refused
to make the
same finding for Echols. This indicates that the jury
carefully
weighed the evidence and determined that Echols should
not be
credited with this mitigating factor. Even so, Echols
contends the
jury committed error in refusing to find that he had
no significantprior history of criminal activity.
Echols and the State are in
dispute about our law on this
point, so we set out our applicable holdings. In Bowen
v. State,
322 Ark. 483, 911 S.W.2d 555 (1995), the mitigating
circumstance
sought by the defendant was mental illness. Bowen
adduced strong
evidence of mental illness, but the jury did not find
mental
illness was a mitigating circumstance. We held that
even if the
evidence of the defendant's mental illness was
uncontradicted, the
jury was not required to believe the defendant's
evidence and was
not required to find such a mitigating circumstance.
"A jury is
not required to find a mitigating circumstance just
because the
defendant puts before the jury some evidence that
could serve as
the basis for finding the mitigating circumstance." Id.
at 497, 917
S.W.2d at 561.
In Hill v. State, 289
Ark. 387, 713 S.W.2d 223 (1986), we held
that the jury did not have to find an eighteen year
old's youth was
a mitigating factor. We quoted Giles v. State,
261 Ark. 413, 421,
549 S.W.2d 479, 483 (1977), and held that "[a]ny hard
and fast rule
as to age would tend to defeat the ends of justice, so
the term
youth must be considered as relative and this factor
weighed in the
light of varying conditions and circumstances." Id.
at 396, 713
S.W.2d at 237.
In Giles v. State, 261
Ark. 413, 549 S.W.2d 479 (1977), the
jury found no mitigating circumstances. We held that
the jury did
not err in refusing to find that the defendant's youth
was a
mitigating factor. However, we held that the jury
erred in failingto find, as a mitigating factor, the
fact that the defendant
committed the crime while his capacity to conform his
conduct to
the requirements of the law was impaired as a result
of mental
disease or defect. The record in Giles v. State
was replete with
evidence that the defendant was an imbecile and had
organic brain
syndrome "to the extent that the conclusion [was]
inescapable that
the capacity of Giles to conform his conduct to the
requirements of
law, when the capital felony was committed, was
impaired as a
result of mental defect." Id. at 424, 549
S.W.2d at 485. We
wrote, "The jury was not free to arbitrarily disregard
reasonable
testimony, where other testimony is supportive, rather
than
conflicting, and no questions of credibility are to be
resolved,
and it cannot be said that it is physically impossible
or that
there is no reasonable probability that it is true." Id.
In summary, our holdings
provide that a jury may generally
refuse to believe a defendant's mitigating evidence,
but when there
is no question about credibility and, when, in
addition, objective
proof makes a reasonable conclusion inescapable, the
jury cannot
arbitrarily disregard that proof and refuse to reach
that
conclusion. Here the jury was faced with neither
indisputable
credibility nor objective proof that made a reasonable
conclusion
inescapable. To the contrary, there was substantial
evidence of
Echols's history of prior criminal activity.
Echols admitted on
cross-examination in the penalty phase of
the trial that he had an altercation with his father
in which a
knife was involved and the police were called. He
admitted he washospitalized that same day, and when
his father came to the
hospital, "I told him I would eat him alive." He
admitted he tried
"to claw the eyes out" of a student. Perhaps the most
compelling
testimony on this point came from the
cross-examination of Dr.
James Moneypenny, a psychologist who testified for
Echols. Dr.
Moneypenny admitted that Echols had "an all powerful
God-like image
of himself" and that his parents were concerned with
his satanism
or devil worship. Dr. Moneypenny admitted that
Echols's medical
records contained the following notations of
statements by Echols:
I want
to go where the monsters go. Pretty much hate the
human race. Relates that he feels people are in two
classes,
sheep and wolves. Wolves eat sheep.
Echols
explains that he obtains his powers by drinking
blood of others. He typically drinks the blood of a
sexual
partner or a ruling partner. This is achieved by
biting or
cutting. It makes me feel like a god.
Echols
describes drinking blood as giving him more power
and strength ... He has also agreed to continue to
discuss his
issues with power and control as related to his
practice of
rituals.
I just
put it all inside. Describes this as more than
just anger like rage. Sometimes he does `blow up.'
Relates
that when this happens, the only solution is to hurt
someone. Echols reports being told in the hospital
that he would be
another Charles Manson or Ted Bundy. When questioned
on his
feelings he states, "I know I'm going to influence the
world. People will remember me."
The jury, having heard the foregoing, did not
arbitrarily refuse to
find that Echols had no significant history of
criminal activity.

Severance Arguments

The Prosecuting Attorney
jointly charged Misskelley, Echols
and Baldwin with the three capital murders. The trial
court
granted a severance to Misskelley, and he was tried
and convicted. That left Echols and Baldwin jointly
charged. Prior to their
scheduled trial, both moved for severance, and each
renewed the
motions at various times during the trial, including
at the close
of the State's case. Neither argued for a severance of
the three
capital murder charges; rather, each argued that he
should be
granted a separate trial from the other. The trial
court denied
all of the motions. Both Echols and Baldwin assign as
error the
trial court's rulings denying them separate trials. Joinder and severance
procedure is governed by Ark. R. Crim.
P. Article VI. These rules are calculated to promote
the
expeditious disposition of criminal cases without
putting undue
strain on prosecutorial or judicial resources, but, at
the same
time, without causing prejudice to joint defendants.
Rule 21.2
provides for the joinder of defendants when the crimes
were part of
a joint scheme or plan and so the capital murder
charges were
properly joined. The issue is whether the trial court
erred in
refusing to grant a severance for the accuseds'
trials. Rule 22.3
provides that a trial court shall grant a severance if
it is deemed
appropriate to promote a fair determination of the
guilt orinnocence of one of the defendants.
Trial courts have discretion
to grant or deny a severance and
on appeal we will not disturb the ruling in the
absence of an abuse
of that discretion. Hallman v. State, 264 Ark.
900, 575 S.W.2d 688
(1979). In McDaniel v. State, 278 Ark. 631,
648 S.W.2d 57 (1983),
we held that, in determining whether to grant a
severance, a trial
court should weigh: (1) whether the defenses of the
defendants are
antagonistic; (2) whether it is difficult to segregate
the
evidence; (3) whether there is a lack of substantial
evidence
implicating one defendant except for the accusation of
the other
defendant; (4) whether one defendant could have
deprived the other
of all peremptory challenges; (5) whether one
defendant will be
compelled to testify if the other does so; (6) whether
one
defendant has no prior criminal record and the other
has; (7)
whether circumstantial evidence against one defendant
appears
stronger than against the other. Id. at 638,
648 S.W.2d at 57. Subsequently, in Rhodes v. State,
280 Ark. 156, 655 S.W.2d 421
(1983), we said that McDaniel does not say
that in every case, even
in capital cases, where antagonistic defenses are
presented the
trial court must grant a severance, but merely that
when defenses
are antagonistic the trial court must be particularly
careful that
neither defendant is "unduly jeopardized" by a joint
trial. Id. at
158-59, 655 S.W.2d at 422. More recently, we have
written that the
presence of any one of the factors does not
necessarily require
severance, as there are multiple factors to consider.
Rockett v.
State, 319 Ark. 335, 891 S.W.2d 366 (1995).
Almost all of the factors
clearly weigh in favor of a joint
trial. The joint trial was lengthy, lasting seventeen
days, and
perhaps separate trials would have taken twice as long
and required
twice as many jurors; the evidence was not difficult
for the jury
to segregate; the evidence was not significantly
stronger against
one defendant than the other; the testimony of one did
not compel
the other to testify; and there was no significant
disparity in
criminal records of the defendants. The trial judge
made various
comments when denying the severance motions, and those
comments
reflect that he thought the jurors could distinguish
the evidence
and apply the law intelligently to each offense and to
each
defendant.
The only argument that is of
any consequence is the argument
about antagonistic defenses. Echols and Baldwin argue
that they
had conflicting trial strategies, and, as a result,
their defenses
were antagonistic. The State's response is that
antagonistic
defenses arise only when each defendant asserts his
innocence and
accuses the other of the crime. Certainly, we have
held that
antagonistic defenses arise when each defendant
asserts his
innocence and accuses the other of the crime, and the
evidence
cannot be successfully segregated. Cooper v. State,
324 Ark. 135,
140, 919 S.W.2d 205 (1996); Butler v. State,
303 Ark. 380, 797
S.W.2d 435 (1990); and McDaniel v. State, supra.
But those are not
the facts before us. Closer to the facts of this case,
but not
wholly dispositive of the argument, we have held that
when there
was no reason the jury could not have believed both
defenses, thedefenses are not antagonistic. Cooper
v. State, 324 Ark. at 140,
919 S.W.2d at 209. Other courts have similarly held
that where
there was an evidentiary basis for the jury to decide
each
defendant's case separately, there is no error in
denying severance
just because of inconsistent strategies. E.g.,
United States v.
Jenkins, 496 F.2d 57, cert. denied, 420
U.S. 925 (1974); see also
Wade R. Habeeb, Annotation, Antagonistic Defenses
as Ground for
Separate Trials of Codefendants in Criminal Case,
82 A.L.R.3d 245,
264 (1978).
Correspondingly, the Fifth
Circuit Court of Appeals has
written:
[W]e hold that the defense of
a defendant reaches a level of
antagonism (with respect to the defense of a
co-defendant)
that compels severance of the defendant, if the jury,
in order
to believe the core of the testimony offered on behalf
of that
defendant, must necessarily disbelieve the testimony
offered
on behalf of this co-defendant. United States v. Berkowitz, 662 F.2d
1127, 1134 (5th Cir. 1981).
The Eleventh Circuit Court of
Appeals followed the Fifth
Circuit's statement and applied it with the following
four-step
analysis:
(1) Do the alleged conflicts
with co-defendant's defenses go
to the essence of the appellant's defense?
(2) Could the jury reasonably
construct a sequence of events
that accommodates the essence of both defendants'
defenses?
(3) Did the conflict subject
the appellant to compellingprejudice?
(4) Could the trial judge
ameliorate the prejudice? Smith v. Kelso, 863 F.2d 1564, 1568 (11th Cir.
1989).
In summary, unless conflicting
strategies go to the essence of
co-defendants' defenses, and the conflicting
strategies are so
great that both defendants' defenses cannot be
accommodated by the
jury, a trial court is not required to grant a
severance. Here,
the alleged conflicting strategies did not reach that
level. The
defense of each, in effect, was that he did not commit
the crimes. Echols presented an alibi defense that he
was visiting friends with
his parents when the murders took place. Baldwin
likewise
presented an alibi defense that relied upon the fact
that he was at
school the day of the murders, was at home by ten
o'clock that
night, and was never placed near the scene. Echols's
arguments
about conflicting strategy because of pretrial
publicity and the
reason he took the name "Damien" did not go to the
essence of his
defense and did not conflict with Baldwin's defense.
Similarly,
Baldwin's complaints that Echols was placed near the
scene, but he
was not seen there, do not go to the core of his
defense that he
had nothing to do with the crimes. The contention that
Baldwin
could have possibly argued that Echols placed the
knife behind his
trailer does not relate to the core of his general
denial. Baldwin
contends he was entitled to a severance because Echols
testified at
trial, but nowhere in Echols's testimony did he
implicate Baldwin. These alleged "conflicts in
strategy" did not subject either
defendant to a compelling prejudice.
The only alleged conflicts in
strategy that are of any
significance are Echols's allegation that Baldwin said
that he was
under the influence of Echols, and the complaints of
both
appellants that their strategy conflicted on how to
deal with the
evidence of the occult activities. Echols's argument
about Baldwin
stating that he acted under his influence is factually
inaccurate. That statement was made during counsel's
closing argument, and
counsel actually said that Baldwin might be vulnerable
to a finding
of guilt by association, since he and Echols were
friends. This
statement by counsel, apparently made in derision of
the
prosecution, clearly did not cause a conflict with
Echols to the
extent that it mandated severance. Thus, we are left
with only the
complaints about strategy in how to deal with the
evidence of
occult activities. Echols contends that his strategy
would have
been to openly admit all evidence of satanic worship
in order to
show its absurdity, while Baldwin contends that he
wanted to
exclude all of the evidence. Again, this alleged
difference in
strategy did not go to the general denial. Moreover,
the jury
obviously did not think the proof of occultism was
absurd, and it
is doubtful that Echols would have freely admitted
satanic worship
as a matter of strategy, even if he had a real choice
in the
matter. Even had the trial court granted motions for
severance,
the expert testimony would have been admitted in a
trial against
Echols, and it also would have been admitted against
Baldwin,
because of Michael Carson's statement that Baldwin
told him he
sucked blood from Christopher Byers, a satanic-type
act. In sum,this alleged difference in strategy did
not go to the essence of
either defense, did not prevent the jury from
considering either
defense, did not unduly jeopardize a fair trial, and
did not
mandate a severance.
Baldwin separately argues
that the trial court erred in
refusing to grant a severance when the deputy
prosecutor questioned
Echols about his doodles on a piece of paper. The
argument is
procedurally barred. Baldwin's argument to the trial
court was
that he was not notified, through discovery, of the
paper. He
argues to this court, as he did to the trial court,
that the
questioning, coupled with the fact that he was not
provided the
paper during discovery, entitled him to a severance.
At trial the
deputy prosecutor acknowledged that the State had
inadvertently
violated the discovery rules. Baldwin responded that
he would be
satisfied with a cautionary instruction to the jury
that the
testimony on this point could only be used against
Echols. The
trial court gave the requested cautionary instruction.
Baldwin's
counsel responded, "That satisfies us, Your Honor."
Baldwin's
counsel again requested a severance, but did not
mention the piece
of paper with the doodles on it. The trial court
denied the motion
and again instructed the jury to consider the evidence
only against
Echols, and not Baldwin. Thus, Baldwin did not ask for
a severance
because of admission of a piece of paper with doodles
drawn on it
by Echols, and he cannot make the argument for the
first time on
appeal. Spears v. State, 321 Ark. 504, 905
S.W.2d 828 (1995).
Baldwin next argues that his
conviction should be reversedbecause the trial court
made a "binding commitment" to grant a
severance if Echols testified, and that Echols
testified but the
trial court did not grant a severance. In pretrial,
the trial
court stated that in the event one of them testified,
the other
might then be compelled to do so, and, "There's case
law on that,
and the other defendant would be entitled to an
immediate
mistrial." In a similar case, we held that this kind
of ruling does
not amount to a "binding commitment." In Ruiz v.
State, 299 Ark.
144, 772 S.W.2d 297 (1989), the trial judge told the
defendants
that if a conflict developed in selection of jurors, a
severance
would be granted, because "that's the law." Id.
at 151, 772 S.W.2d
at 301. This comment was made after the trial judge
refused to
enlarge each defendant's number of peremptory
challenges. Later,
the defendants disagreed over some jurors, and moved
for a
severance, which was denied. Id. We held that
the trial judge had
not made a binding commitment, but had alluded to the
law as set
forth in McDaniel v. State, which states that
one factor favoring
severance is when one defendant deprives the other of
peremptory
challenges. We held that the trial court did not abuse
its
discretion by denying severance when the facts had not
developed to
that point. Similarly, Echols did not implicate
Baldwin when he
testified, and, as a result, the trial court did not
abuse its
discretion in denying the severance.
Baldwin next insists that
severance was required in these
capital cases as a matter of law. Before the Arkansas
Rules of
Criminal Procedure were adopted, the trial court had
discretion togrant severance of defendants in all
cases except capital cases,
where they were granted severance as a matter of right
under Ark.
Stat. Ann. § 43-1802 (Repl. 1977). Baldwin
contends that the
statute, an initiated act, is still in effect. To the
contrary, in
McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57
(1983), we held that
the cited statute had been superseded by Ark. R. Crim.
P. 22, which
gives the trial court discretion to grant or deny a
severance in
all cases. Id. at 636, 648 S.W.2d at 59. In Hallman
v. State, 264
Ark. 900, 575 S.W.2d 688 (1979), we held that since
the adoption of
Ark. R. Crim. P. 22, capital defendants no longer have
a right to
separate trials. Id. at 904, 575 S.W.2d at
691. However, in
Clines v. State, 282 Ark. 541, 543, 669 S.W.2d
883, 885 (1984), in
dicta in a per curiam opinion, the court
expressed doubt as to
whether the act had been superseded. We should not
have expressed
any doubt about the matter in Clines because
our holdings in
McDaniel and Hallman are clear that the
act has been superseded by
Ark. R. Crim. P. 22. Moreover, Ark. Stat. Ann. §
43-1802 has been
repealed. The General Assembly adopted the Arkansas
Code of 1987
Annotated by Act 267 of 1987. Section 4(a) of Act 267,
codified as
Ark. Code Ann. § 1-2-103(a) (1987), specifically
provides that
"[a]ll acts, codes and statutes, and all parts of them
and all
amendments to them of a general and permanent nature
in effect on
December 31, 1987 are repealed," with some exceptions
not material
to this case. Section 4(a) of Act 267 repealed Ark.
Stat. Ann. §
43-1802 and did not reenact it. Ninety-seven of the
one hundred
members of the House voted for Act 267, and
thirty-three of thethirty-five members of the Senate
voted for it. 2 Journal of the
House 1699 (1987); 3 Journal of the Senate
2134-35 (1987). Thus,
Act 267 had the two-thirds vote needed from each
chamber of the
General Assembly to repeal an initiated act under
Amendment 7.

Suppression of Evidence Arguments

Echols and Baldwin make a
number of arguments contending that
the trial court erred in denying their motions to
suppress
evidence. The facts underlying the arguments are
recited as
follows. On June 3, 1993,
nighttime search warrants were executed
for the residences of Echols and Baldwin. The warrants
each
authorized a search for the following:
black t-shirt; blue jeans with holes in knees; lace-up
boots; briefcase and contents of briefcase with
photographs of young white males; knives; any items
contained in a list of items to compare with Arkansas
Crime Lab Evidence, which consisted of "blue, green
red,
black, and purple fibers, blue, yellow, red, paint or
plastic, and blue, red waxing type substance"; and
cult
or Satanic materials.
A red robe, fifteen black
t-shirts, and a white t-shirt were
seized from Baldwin's house. Two notebooks that
appeared to have
Satanic or cult writings in them, a red t-shirt, blue
jeans, and
boots were taken from Echols's residence.
Both appellants make a number
of suppression arguments. The
first of these is that Detective Bryn Ridge's
affidavit and
testimony supporting the warrant were false, and
consequently thetrial court erred in refusing to
suppress the evidence seized from
the searches.
In United States v. Leon,
468 U.S. 897 (1984), the Supreme
Court held that the good-faith exception does not
apply when the
issuing magistrate was misled by an affiant who either
knew the
information given was false or acted in reckless
disregard of its
truth or falsity. Id. at 923. Franks v.
Delaware, 438 U.S. 154
(1978), provides the test for determining when a
warrant falls
outside the Leon good-faith exception. Under Franks
v. Delaware,
a warrant should be invalidated if a defendant shows
by a
preponderance of the evidence that: (1) the affidavit
contained a
false statement which was made knowingly,
intentionally, or
recklessly by the affiant; and (2) the false statement
was
necessary to a finding of probable cause. Id.
at 155-56. Further,
if such a finding is made, the false material should
be excised and
the remainder of the warrant examined to determine if
probable
cause still exists. Id. If the truthful
portion of the warrant
makes a sufficient showing of probable cause, the
warrant will not
be invalidated. Id. The burden of showing that
an affiant
knowingly and recklessly included a false statement is
upon the
challenger of the affidavit. 438 U.S. at 171.
In Pyle v. State, 314
Ark. 165, 862 S.W.2d 823 (1993), we held
that the standard set out in Franks v. Delaware
requires a knowing
intent to deceive, or a reckless disregard of truth. Id.
at 175,
862 S.W.2d at 828. "Matters omitted must be material
circumstances
which contradict or dispel the incriminating factors
in theaffidavit and which render what is in the
affidavit effectively
false because of their nondisclosure." Biggers v.
State, 317 Ark.
414, 421, 878 S.W.2d 717, 721 (1994).
The affidavit of Detective
Ridge contained the false
statements that appellants contend invalidate the
warrant. In the
affidavit, Detective Ridge stated that Jessie
Misskelley told him
the victims were tied with brown rope when they were
actually tied
with shoestrings, and that the killings took place in
the
afternoon. The latter statement is of no consequence
because the
record reveals that the issuing magistrate, Judge
Rainey, expressed
some concern about the time discrepancy, and, as a
result,
Inspector Gary Gitchell testified under oath that he
had taken an
additional statement from Misskelley, and, in it,
Misskelley said
the crimes took place around 7:00 p.m.
Even if these two statements
were false in material matters,
and even if Detective Ridge knew them to be false, the
rest of the
warrant still made a sufficient showing for probable
cause. See
Franks v. Delaware, supra. The warrant contained
a sufficient
showing of the facts that Misskelley said he, Baldwin,
and Echols
committed the murders; that Misskelley had knowledge
of details of
the crime not known to the public; and the statement
that evidence
connecting them to the crime could be found in the
homes.
Baldwin separately argues that
Detective Ridge knowingly and
intentionally misrepresented the truth when he swore
that Echols,
Baldwin, and Misskelley were members of a cult. We
summarily
dismiss this argument because Jessie Misskelley told
InspectorGitchell that the three were in a cult, and
Detective Ridge
testified at the suppression hearing that he had
learned from other
sources that the three were in a cult. Thus, Baldwin
did not meet
his burden of showing that Detective Ridge knowingly
and
intentionally stated a falsehood. See Franks v.
Delaware, supra.
Echols and Baldwin next
contend that the circuit judge erred
in finding that the municipal judge who issued the
warrants was
neutral and detached in determining whether to issue
the warrants.
Detective Bryn Ridge testified that Judge Rainey
informed the
officers "as to the elements that needed to go in the
affidavit in
order for it to be a legal document." Judge Rainey
testified that
he advised the officers that, after the search warrant
had been
executed, they should make sure that they wrote out
everything they
did on the affidavit.
The general rule for the
application of the Fourth Amendment
exclusionary rule to evidence seized under an invalid
warrant is
set out in United States v. Leon, 468 U.S. 897
(1984). There, the
Court carved out the good-faith exception to the
requirement of a
valid warrant. Id. at 922. One of the errors
that an officer's
good faith will not cure is that which occurs when the
magistrate
wholly abandons his detached and neutral judicial
role. Id. When
a judicial officer becomes so involved in the
investigation as to
be deemed a participant, he has abandoned this role. Lo-Ji
Sales,
Inc. v. New York, 442 U.S. 319 (1979). For
example, when a
magistrate accompanies the police to the scene and
orders seizure
of items, his objectivity is lost. Id. at 327.
Likewise, when amagistrate gives the prosecutor
directives about areas of inquiry
or grants immunity to witnesses, he has lost his
objectivity. SeeState v. Guhl, 140 Ga. App. 23, 230 S.E.2d 22
(1976). Here, the
proof showed that the issuing magistrate stated the
elements
necessary for a valid warrant, and that included
telling the
officers to record on the warrant the actions they
took when they
executed the warrant. On such proof we cannot say that
the ruling
of the trial court was clearly in error. Hudson v.
State, 316 Ark.
360, 872 S.W.2d 68 (1994).
Both Echols and Baldwin
contend that the trial court erred in
ruling that Jessie Misskelley was a reliable
informant. Again, we
cannot say that the trial court's ruling was clearly
against the
preponderance of the evidence. Hudson v. State,
supra. Even
though Misskelley's initial statement was in error
about the
ligatures and the time of the killings, he corrected
the latter and
he clearly knew that Christopher Byers had been
castrated and that
one of the victims had been cut in the face. This
information was
not known by the public at the time he supplied this
information. Further, Detective Ridge corroborated
these statements by his own
knowledge gained at the crime scene, and through
contacts at the
state crime laboratory. Even more important,
Misskelley implicated
himself in the murders because he admitted that
Michael Moore
attempted to escape from the crime scene, and he
chased and caught
Moore and brought him back. Thus, the finding that
Misskelley was
a reliable informant was not clearly in error. SeeWilson v.
State, 317 Ark. 548, 878 S.W.2d 755 (1994), rev'd
on other grounds,115 S. Ct. 1914 (1995); Watson
v. State, 291 Ark. 358, 724 S.W.2d
478 (1987).
Both Echols and Baldwin next
contend that the warrant did not
describe with particularity the items to be seized. We
quickly
dismiss the argument. All of the items to be seized
were described
with particularity, except the fibers to be seized for
the crime
laboratory, and it is difficult to think of a way the
warrant could
have been more specific than to describe, as it did,
the blue,
green, red, black, and purple fibers; blue, yellow,
red, paint or
plastic; and blue or red waxing-type substance.
Both appellants also contend
that the warrant authorized a
"dragnet" fishing expedition for "mere evidence." In Warden
v.
Hayden, 387 U.S. 294 (1967), the Supreme Court
held that the Fourth
Amendment allows the seizure of not only the
implements of the
crime, but also allows the seizure of mere evidence
providing there
is a probable cause to believe the evidence sought
will aid in a
conviction.
Echols and Baldwin next
contend that the trial court erred in
refusing to suppress the evidence seized because it
was a nighttime
search.
The nighttime clause in the
affidavit stated:
Your affiant prays that this SEARCH WARRANT be
approved for both night time and day time
service for the following reasons:
A. The objects to be searched for are in
imminent danger of removal, could be destroyedor
disposed of as suspects are close friends
and members of a close-knit cult group. It is
extremely likely that information of the
detention of one of the cult members will
result in the immediate destruction of items
of evidence, or place such objects to be
seized in danger of imminent removal. One of
the suspects is in custody at the time of the
execution of the affidavit.
Rule 13.2 of the Arkansas
Rules of Criminal Procedure provides
for nighttime searches as follows:
Except as hereafter provided, the search
warrant shall provide that it be executed
between the hours of six a.m. and eight p.m.,
and within a reasonable time, not to exceed
sixty (60) days. Upon a finding by the
issuing judicial officer of reasonable cause
to believe that:. . .
(ii) the objects to be seized
are in
danger of imminent removal; . . . .
Ark. R. Crim. P. 13.2(c)(ii).
In reviewing whether the
requirements of the rule were met, we
conduct an independent determination based upon the
totality of the
circumstances and reverse only if the trial court's
ruling was
clearly against the preponderance of the evidence. Richardson
v.State, 314 Ark. 512, 863 S.W.2d 572 (1993).
The evidence presented
to the magistrate from whom a nighttime search is
requested must be
of facts justifying a warrant rather than mere
conclusions. Neal
v. State, 320 Ark 489, 898 S.W.2d 440 (1995).
Here, there were facts stated
to support the conclusion that
the evidence was in danger of imminent removal.
Detective Ridge
testified at the hearing that his investigation
revealed that
appellants and Misskelley were close-knit members of a
cult, and,
upon Echols and Baldwin discovering that Misskelley
had been taken
into custody, Echols and Baldwin were likely to
destroy any
evidence that might be in their possession or at their
residence,
such as photographs, knives, and clothing. In light of
this
testimony, the trial court's conclusion that the
nighttime search
was justified was not against the preponderance of the
evidence.
SeeNeal v. State, supra.

Evidence Arguments

Echols and Baldwin make
numerous arguments about evidentiary
rulings throughout the trial. Many of their objections
concerned
admission of evidence regarding the occult. The State
sought to
prove that the murders were cult-related and that
someone with
Echols's interest in the occult could have committed
the murders. Baldwin argued throughout that the State
had failed to connect him
with occult activity. Occult activity In one
of these arguments, Echols contends
that the trial court erred when it ruled that Dr. Dale
Griffis was
qualified as an expert in the field of occultism.
Echols contendsthat Dr. Griffis was not qualified as
an expert because he received
a Masters degree and Doctor of Philosophy degree from
a university
that, although state certified, was not nationally
accredited. Also, he wrote his dissertation with
another person, and he did not
demonstrate that he had reputable training, education,
and
experience. Qualification of
expert witnesses is within the sound
discretion of the trial court and will not be reversed
absent a
showing of abuse. If there is a reasonable basis to
find that the
witness has knowledge of a subject beyond that of
ordinary
knowledge, the witness may be qualified as an expert.
Stout v.
State, 320 Ark. 552, 898 S.W.2d 457 (1995).
Here, proof showed
that Dr. Griffis holds an associate in arts degree and
a bachelor's
degree from an accredited institution, but his
advanced degrees are
from Columbia Pacific University, which is not
nationally
accredited. Another qualification was that his
doctoral
dissertation was on mind control and cults and their
effects on the
objectives of law enforcement. His first experience
with
nontraditional groups was in 1967, almost thirty years
ago, and he
has twenty-six years of experience in law enforcement.
For short
periods of time, he worked for the Los Angeles and San
Francisco
Police Departments, where he gained experience in
nontraditional
groups. He testified that he has talked to about 500
former
members of the occult and read about 300 books on the
subject. He
testified that he receives approximately sixty-five to
seventy
calls a week regarding nontraditional groups, and
about eightypercent of those calls are related to
satanism. He has published
four books on the subject. He has testified as an
expert witness
in state courts in Georgia, Ohio, and Michigan; in
federal court in
Ohio; and in two foreign countries. He has lectured in
twenty-eight states and two other foreign countries.
Dr. Griffis had much
more than ordinary knowledge of nontraditional groups,
the occult,
and satanism, and the trial court did not abuse its
discretion in
allowing him to testify as an expert witness.
Echols next contends that Dr.
Griffis should not have been
allowed to testify that the murders had the "trappings
of
occultism" because there was no testimony that the
field of
satanism or occultism is generally accepted in the
scientific
community. The argument is without merit, as the trial
court did
not allow the evidence to prove that satanism or
occultism is
generally accepted in the scientific community.
Rather, the trial
court admitted the evidence as proof of the motive for
committing
the murders.
In a related vein, Echols
makes a two-fold argument that the
trial court erred in allowing evidence of his interest
in the
occult. He argues that the ruling violated his First
Amendment
rights and that the trial court abused its discretion
in
determining that the evidence was relevant and more
probative than
prejudicial.
The First Amendment argument
can be quickly dismissed. In
Dawson v. Delaware, 503 U.S. 159 (1992), the
Supreme Court held
that the introduction of evidence of beliefs and
associationsviolates a defendant's constitutional
rights when there is no
connection between those beliefs and associations and
the crime. But the Court expressly distinguished Barclay
v. Florida, 463 U.S.
939 (1983), in which it held that dissident beliefs
and racial
hatred stemming from the defendant's membership in the
Black
Liberation Army were relevant to the murder of a white
victim, and,
as such, his First Amendment rights were not violated.
Dawson v.
Delaware, 503 U.S. at 164. The case at bar falls
within the ambit
of Barclay v. Florida.
Echols makes several relevancy
arguments regarding physical
evidence of occult activity. The trial court allowed
the State to
introduce into evidence a journal that contained
matters
handwritten and drawn by Echols. The entries contain
numerous
images of death, as well as references to rotting
flesh and dead
children. The State focused upon an entry that said "I
want to be
in the middle. In neither the black nor the white. In
neither the
wrong nor the right." The State offered the statement
to explain
the confusion expressed by the occult expert, Dr.
Griffis, that
some of the symbols in one of Echols's books were from
the Wiccan,
or "white magic" religion, and others from satanism,
or "black
magic," and the two are not consistent. Echols first
objected on
the ground of the best-evidence rule, and the State
responded that
it would supply the original. Echols's counsel
responded, "We
request that the entire book and all my client's
writings be
introduced into evidence. We object to part being
taken out." The
trial court ruled that the entire journal would be
received. Thus,the trial court ruled in Echols's
favor, and a party cannot obtain
relief from a favorable ruling. Smith v. State,
316 Ark. 407, 872
S.W.2d 842 (1992).
The trial court also allowed
in evidence, over Echols's
objection, items taken from Echols's room in a
juvenile court
proceeding in 1992. The items had been kept in his
juvenile court
file. These items included a dog's skull; a manual; a
funeral
register upon which Echols had drawn a pentagram and
upside-down
crosses and had copied various spells; a heavy-metal
poster
depicting graveyards; a skateboard magazine; and
pictures of
various posters. On appeal, Echols contends that the
items were
not admissible because they were not relevant and
because they came
from his juvenile court file.
The State's expert, Dr.
Griffis, testified that the manner of
the killings, the age of the victims, the way the
victims were
tied, the removal of genitals, and the evidence of
bloodsucking
were indicative of occult activity, and he referred to
five of the
exhibits from the juvenile court file during his
testimony. The
evidence was relevant to show motive. We have said
that when the
purpose of evidence is to show motive, anything and
everything that
might have influenced the commission of the act may,
as a rule, be
shown. Cooper v. State, 324 Ark. 135, 919
S.W.2d 205 (1996). The
State is entitled to produce evidence showing
circumstances which
explain the act, show a motive for killing, or
illustrate the
accused's state of mind. Smith v. State, 310
Ark. 247, 837 S.W.2d
279 (1992). Further, a trial court's ruling on
relevancy, as wellas prejudicial impact, is afforded
great deference by a reviewing
court and will not be disturbed absent an abuse of
discretion. Bennett v. State, 297 Ark. 115,
759 S.W.2d 799 (1988).
It is true that the items came
from Echols's juvenile court
files, but Ark. Code Ann. § 9-27-309(a) gives the
juvenile court
discretion to open files. The trial court noted that
the juvenile
court had, by order, opened the files for the State.
A book, Never on a
Broomstick, which is about the history of
witches, was found in Echols's room after the murders.
Again, it
was relevant to show Echols's interest in the occult.
Echols and Baldwin make yet
another relevancy argument. In
its case-in-chief, the State called Jerry Driver, a
juvenile
officer, to testify that he saw Echols, Baldwin, and
Misskelley
walking together six months before the murders, and
that they were
wearing long black coats and carrying long sticks or
staffs. Echols and Baldwin each made an objection
based on relevancy. The
trial court ruled that the murders could have been
committed with
staffs and that they could have been occult murders;
therefore, the
evidence was relevant.
To be relevant, it is not
required that evidence prove the
entire case or even a single issue. Ford Motor Co.
v. Nuckolls,
320 Ark. 15, 894 S.W.2d 897 (1995). All that is
required is that
it have "any tendency" to make any fact that is of
consequence to
the determination of the action more or less probable.
Ark. R.
Evid. 401. Here, the State's theory was that the
murders were
cult-related, and there was additional evidence about
occultpractices. This evidence provided a
circumstantial link and was
therefore relevant.
Baldwin argues that the occult
evidence should not have been
admitted because there was "little if any" evidence to
link him to
such activity, and the only reason for it to be
admitted against
him was to inflame the jury.
Prior to trial, Baldwin filed
a
motion in limine to prevent the State from eliciting
testimony that
the crimes were occult-related without first
conducting an in
camera hearing to determine that there was a
sufficient basis to
find that he was involved in such activities and that
the
activities were a motive in the homicides. The trial
court granted
the motion "until such time as the Court is convinced
in an in
camera proceeding that there is competent evidence
that [Baldwin]
was involved in occult and/or occultic type activities
and/or that
this crime is indicative of a ritualistic occult
killing."
The trial court subsequently
found that Michael Carson's
testimony that Baldwin told him he had dismembered one
of the boys,
sucked the blood from his penis and scrotum, and put
the testicles
in his mouth was evidence by which a jury could
conclude that he
was involved in occultic-type activities. From the in
camera
testimony of Dr. Dale Griffis, an expert on ritual
killings, there
was evidence by which a jury could find that the
crimes were a
ritual killing. Dr. Griffis stated that one of the
facts that led
him to believe that the killings were cult-related was
that
Christopher Byers was castrated and had had the blood
sucked from
his penis. Thus, there was sufficient evidence of
Baldwin'sparticipation in occult activities, and the
trial court correctly
allowed the evidence. SeeSnell v. State,
290 Ark. 503, 721 S.W.2d
628 (1986). In United States v. Mills, 704
F.2d 1553 (11th Cir.
1983), in affirming a trial court's decision to admit
evidence that
the defendant was associated with the Aryan
Brotherhood, a white
supremacist group that exists in prisons, the Eleventh
Circuit
Court of Appeals said:
Such evidence ... is now considered proper if
it is linked together in time and
circumstances to the crime charged, or if it
forms an "integral and natural" part of the
account of the circumstances of the crime, or
is necessary "in order to complete the story
of the crime on trial."Id. at 1559 (citations omitted).
Echols called Robert Hicks as
an expert witness who has done
extensive studies and consulting about cult crimes.
Hicks
testified that the murders were not cult-related.
Echols's counsel
sought to question Hicks about the opinion of Ken
Lanning, an FBI
expert on cult crimes. Counsel asked Hicks if he was
familiar with
Lanning's writings and if he knew Lanning's opinion on
cult-related
crimes. The State objected on the basis of hearsay,
and the trial
court sustained the objection. The court said that
Hicks could
state his own opinion, but not the opinion of someone
else. Echols
assigns the ruling as error.
The scholarly treatise
exception, Ark. R. Evid. 803(18),provides:
Learned treatises. To the extent called to
the attention of an expert witness upon
cross-examination or relied upon by him in direct
examination, statements contained in published
treatises, periodicals, or pamphlets on the
subject of history, medicine, or other science
or art, established as a reliable authority by
testimony or admission of the witness or by
other expert testimony or by judicial notice. If
admitted, the statements may be read into
evidence but may not be received as exhibits.Id. (emphasis added). The rule applies to a
particular statement
from a particular treatise, not to a general opinion
of another
expert based upon a generalized familiarity with the
expert. Here,
no foundation was laid about a particular treatise to
which the
witness could refer, and no foundation was laid about
the
reliability of the expert on the subject. Before a
treatise may be
used, its reliability must be established. Davies
v. State, 286
Ark. 9, 688 S.W.2d 738 (1985). Since the trial court
was not
apprised of a particular treatise, or its reliability,
the hearsay
objection was correctly sustained. Moreover, Echols
could not have
suffered any prejudice from the ruling because the
information was
later given to the jury. On redirect, Echols's counsel
asked Hicks
if his book gave the following Lanning statement,
"Bizarre crime
and evil can occur without organized satanic activity.
The lawenforcement perspective requires that we
distinguish between what
we know and what we are not sure of." Hicks said the
statement was
in his book, and he agreed with it.
On cross-examination, the
State asked Hicks about the
philosophies of Aleister Crowley, a
turn-of-the-century British
writer who supposedly condoned human sacrifice. Echols
objected on
the ground that he had not been allowed to ask about
quotations
from Lanning. Echols's counsel stated that both sides
should be
treated equally. The court responded that the witness
could give
his own opinion, or testify about his familiarity with
the works of
another person in the field, but he could not adopt
the other
expert's opinion as his own. After Hicks testified
that he had
"mixed feelings" about whether Crowley espoused human
sacrifice,
the State asked if Hicks was familiar with Crowley's
book, Magic in
Theory and Practice, and he said that he was.
There was no attempt
to prove reliability, but Echols did not object to
this lack of
foundation and does not complain of it on appeal.
Rather, in this
point, he argues that the law-of-the-case doctrine
prohibited the
court from making a different ruling on the same
argument. The
argument is without merit. The rulings were not
inconsistent, but,
even had they been inconsistent, the law-of-the-case
doctrine was
not applicable. While the doctrine is not limited to
appeals and
may be applied to issues raised in a continuing
lawsuit, Fairchild
v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994),
when applied in a
continuing suit, the doctrine is different from when
applied to
subsequent appeals. As Justice Holmes wrote in Messenger
v.Anderson, 225 U.S. 436 (1912), this doctrine,
when applied to the
effect of previous orders on the later action of the
court
rendering them in the same case, "merely expresses the
practice of
courts generally to refuse to reopen what has been
decided, not a
limit to their power." Id. at 444; see
also 18 Charles Alan
Wright, Arthur R. Miller, and Edward H. Cooper, Federal
Practice
and Procedure § 4478 (1996). In the present
case it is
questionable whether this was the "same issue," but
even if it
were, the trial court had the power to reconsider its
ruling. In
any event, Echols suffered no prejudice because he got
the Lanning
quotation in evidence.Other suspects
Throughout the trial, both appellants
attempted to put in front of the jury evidence of
other suspects.
The following arguments involve rulings on evidence
both appellants
sought to introduce to show that someone else
committed the
killings.
Echols assigns as error a
ruling that, he contends,
arbitrarily stopped him from examining John Mark
Byers. Echols
called John Mark Byers, the stepfather of victim
Christopher Byers,
during his case-in-chief. Byers was considered a
suspect at one
time, and the police had questioned him about human
blood of the
same type as Christopher's that was found on a Kershaw
hunting
knife that belonged to John Byers. Echols contends
that his direct
examination of Byers was arbitrarily stopped by the
trial court. The facts underlying the argument are as
follows. Earlier, during
Inspector Gary Gitchell's testimony, Echols's counsel
askedGitchell if he had questioned Byers about the
murders before
charges were filed against Echols. Gitchell answered
affirmatively. Echols asked Gitchell about some of the
questions
he had asked Byers and about some of Byers's
responses. The trial
court ruled that the testimony was hearsay and that
Echols's
counsel could ask the questions of Byers when he took
the stand. Later, when he called Byers during his
defense, Echols's counsel
began reading Byers the questions Inspector Gitchell
had asked him. The court ruled that the form of
Gitchell's questions was not
relevant and directed Echols's counsel to ask Byers
about the
circumstances, and if Byers contradicted any statement
he had given
Gitchell, then Echols's counsel could "read every word
of [Byers's
statement to Gitchell] that is contrary to what his
answers were." On appeal,
Echols assigns the ruling as error and contends
that he was not allowed to question Byers about the
kind of knife
he had, if he had ever taken the knife hunting, if he
used the
knife, and why DNA tests of the blood on the knife
matched his
blood. The trial court did not arbitrarily stop
Echols's counsel
from asking proper questions. In fact, the record
shows that
Echols's counsel was allowed to ask the questions he
complains that
he was not allowed to ask. Echols's counsel showed
Byers a Kershaw
hunting knife and asked if he could identify it and
whether it
belonged to him. Byers responded affirmatively to both
questions. Echols counsel asked Byers if he had ever
taken the knife deer
hunting, and he responded "no." When asked if he had
ever used the
knife, he said he had used it to trim his toenails and
hadattempted to trim some venison with it. At this
point he impeached
Byers with his earlier answer to Gitchell in which he
said that the
knife had not been used at all. Finally, he asked
Byers if, to his
knowledge, blood had been found on the knife. He
responded that he
had no idea how any blood could have gotten on the
knife, except
that he remembered cutting his own thumb. On each
occasion when
one of Byers's answers was inconsistent with his
statement to
Gitchell, Echols's counsel was allowed to read from
Gitchell's
report.
Echols also sought to ask
Byers if he had been sodomized when
he was eighteen, whether he had prior drug arrests,
and whether he
had ever been an informant. The trial court ruled the
questions
were not relevant to any issue in the trial. On
appeal, the State
contends that we should not reach the point because
Echols did not
make a proffer. We hold that Echols made a sufficient
offer of
proof. Counsel stated the questions he wanted to ask
and gave the
answers he anticipated the witness would give. That
was a
sufficient offer of proof under Ark. R. Evid.
103(a)(2).
Here, Echols was attempting
to show that Byers might be the
one who committed the murders because he had been
abused as a young
man and had committed other bad acts. We have held
that evidence
that a third party may have committed the crime is
inadmissible
unless it points directly to the guilt of the third
party. If it
creates no more than an inference or conjecture as to
the third
party's guilt, it is inadmissible. Zinger v. State,
313 Ark. 70,
852 S.W.2d 320 (1993). We have also held that there
should besufficient connection between the evidence
and the possibility of
another person's guilt before it is admissible. Larimore
v. State,
317 Ark. 111, 124, 877 S.W.2d 570, 576 (1994). Here,
the facts
that the witness may have been abused and may have
committed
unrelated bad acts created no more than a reckless
inference that
he murdered his stepson and the other two victims.
Echols's counsel questioned
Detective Bill Durham of the West
Memphis Police Department about a photographic spread
of suspects
he had shown to Aaron Hutcheson. In response to
questions, Durham
testified that he did not remember who was in the
photospread and
did not know if Echols's photograph was included in
the spread. Echols's counsel continued to pursue the
inquiry, and Durham
responded a number of times that he did not know who
was included
in the photospread. Finally, over counsel's objection,
the trial
court stopped questioning on the subject because it
was not
relevant. Echols's purpose in the questioning was to
attempt to
show that there might be another suspect, or some
other suspects. Certainly, an accused is entitled to
show that someone else
committed a crime, but an accused is not entitled to
offer evidence
of other suspects on a wholly speculative basis and
without linking
the other suspects in some manner. Here there was
nothing to
indicate that anyone in the photospread committed the
crimes, and
the trial court correctly ruled that further
questioning of the
officer about the photospread was irrelevant. SeeZinger v. State,
supra.Echols
next argues that the trial court erred when it
refusedto allow him to introduce a serologist's report
from the crime
laboratory. Arkansas Code Annotated §
12-12-313(a) (1987) provides
that an evidence analysis made by the State Crime
Laboratory shall
be received as competent evidence subject to the
applicable rules
of criminal procedure. The purpose of the statute is
to remove
reports from exclusion under the hearsay rule, not to
require that
they always be admitted for any reason. Hendrix v.
State, 40 Ark.
App. 52, 842 S.W.2d 443 (1992). Echols sought to
introduce a copy
of the report, not to show the analysis made by the
laboratory, but
to show the names of other people, primarily John Mark
Byers, who
were listed as suspects in the murders. The trial
court ruled that
the hearsay statements contained in the report were
not admissible
and that the names of suspects listed on the document
would not be
admitted unless there was some evidence to connect the
suspects
with the crimes. The ruling was correct. The statute
removes
reports from exclusion under the hearsay rule, but
that does not
mean that they are admissible for any reason.
Moreover, evidence
that a third party may have committed the crime is
inadmissible
unless it points directly to the guilt of the third
party. If it
creates no more than an inference or conjecture as to
the third
party's guilt, it is inadmissible. Zinger v. State,
313 Ark. 70,
852 S.W.2d 320 (1993). Further, Echols could not show
prejudice
because the jury was informed that John Mark Byers was
a suspect.
Both Echols and Baldwin next
contend that the trial court
committed error when it refused to allow them to call
Chris Morgan
as a defense witness. Morgan lived in the West Memphis
area at thetime of the murders and moved to California
four days afterwards. The trial court ruled Morgan
could be called by appellants but,
when Morgan asked for a lawyer, the trial court
instructed
appellants' counsel to put on another witness while
Morgan
consulted with counsel. After consulting with his
lawyer, Morgan
stated that he would invoke the Fifth Amendment
privilege against
self-incrimination. Appellants argued that Morgan
should not be
allowed to invoke a "blanket" Fifth Amendment
privilege, but
instead would have to claim the privilege in response
to each
question they chose to ask. Morgan's lawyer stated
that there
were federal charges pending against Morgan in
Tennessee, and that
there were some overlapping facts in his statements
regarding these
charges. The trial court ruled that appellants could
not call
Morgan because, under the provisions of Ark. R. Evid.
512, a
witness should not be compelled to invoke his
privilege in front of
the jury, and that if he were forced to take the stand
and invoke
the privilege against self-incrimination any probative
value would
be substantially outweighed by the possibility of
confusing the
jury. See Ark. R. Evid. 403.
Rule 512(b) of the Arkansas
Rules of Evidence provides, "In
jury cases, proceedings shall be conducted, to the
extent
practicable, so as to facilitate the making of claims
of privilege
without the knowledge of the jury." Appellants argued
to the trial
court that this rule applies only to the privileges
delineated in
Ark. R. Evid. Article V, and not to the Fifth
Amendment privilege. On appeal, appellants cite no
authority for the argument, and, tothe contrary,
Arkansas Rule of Evidence 501 states, "Except as
otherwise provided by constitution or statute or by
these or other
rules promulgated by the Supreme Court of this State,
no person has
a privilege to refuse to be a witness." Ark. R. Evid.
501(a). This includes the Fifth Amendment, as it is a
privilege "otherwise
provided by constitution." The case of Hamm v.
State, 301 Ark.
154, 782 S.W.2d 577 (1990), reflects the same
rationale. There, we
held that "neither the prosecution nor the defense is
permitted to
call a witness knowing that the witness will claim his
testimonial
privilege." Id. at 159, 782 S.W.2d at 580. Our
reasoning in that
case was that neither side should be permitted to
build a case out
of a series of invocations of the privilege, which
would be the
equivalent in the jury's minds of testimony. Id.
Moreover, in addition to
passing a Rule 403 balancing test,
the kind of evidence appellants sought to introduce
must have had
a tendency to negate the defendant's guilt. Larimore
v. State, 317
Ark. 111, 877 S.W.2d 570 (1994). This kind of evidence
is
inadmissible unless it points directly to the guilt of
the third
party. If it creates no more than an inference or
conjecture as to
the third party's guilt, it is inadmissible. Zinger
v. State, 313
Ark. 70, 852 S.W.2d 320 (1993). There must be a
sufficient nexus
between the evidence and the possibility of another
person's guilt. Larimore v. State, supra.
Similarity and time connections are
factors in determining the probativeness of the
evidence, which
must be weighed against the possibility of confusing
the issues and
wasting time. Id. Here, the trial court had
heard a proffer andknew that his statement did not
exculpate the appellants. The
admission or rejection of evidence under Rule 404(b)
is committed
to the sound discretion of the trial court, which this
court will
not disturb on appeal absent a showing of manifest
abuse. Jarrett
v. State, 310 Ark. 358, 833 S.W.2d 779 (1992).
The standard of
review for both relevancy determinations and the
decision to admit
evidence by balancing the probative value against
unfair prejudice
or confusion of the issues is similar. Larimore
v. State, 317 Ark.
at 124, 877 S.W.2d at 576. In sum, the trial court did
not abuse
its discretion in refusing to allow appellants to call
Morgan and
make him claim his Fifth Amendment privilege in front
of the jury.Miscellaneous rulings
Appellants also assign various
miscellaneous evidentiary rulings as error. Baldwin
argues that
the trial court erred in allowing Dr. Peretti, the
state forensic
pathologist, to testify that in his opinion, the three
victims had
been sodomized. Prior to trial, Baldwin filed and
argued a motion
in limine seeking to exclude evidence that the boys
were sodomized. The trial court denied the motion. On
appeal, Baldwin argues that
Dr. Peretti's testimony concerning sodomy was mere
guess and
conjecture because there was an absence of scientific
evidence to
confirm his testimony. He argues that an expert's
testimony must
be that his opinion represents his professional
judgment as to the
most likely or probable result. This argument is
easily disposed
of in that Dr. Peretti did not testify that it was his
opinion that
the victims had been sodomized, but rather testified
as to the
condition of the victims and the possible causes of
the victims'conditions.
At trial, Dr. Peretti
testified as to the injuries that the
victims received. In discussing the injuries, he
testified that
Michael Moore had anal dilatation and redness of the
anal-rectal
mucosa. When asked those findings would be consistent
with some
sort of sexual trauma, Dr. Peretti testified:
Well, you have dilatation of
the anus. It could be from
putting an object in the anus. But also it could be
due
to the fact that postmortem relaxation and the fact
that
the body was in water. And that could alter things,
also.
Dr. Peretti further stated that Steve Branch's anus
was dilated and
the lining of the rectum and anus showed mild
reddening, but that
no further injuries were noted to the anal and rectal
mucosa. He
testified that Christopher Byers had genital-anal
injuries.
Upon cross-examination, Dr.
Peretti testified that the anuses
of the victims were swabbed to determine the existence
of sperm and
that none was found. He testified that, in his
experience, when
someone was forcibly sodomized, he had always found
injuries to the
anal regions. He said that he would expect to find
lacerations,
contusions, and abrasions, and that he would also
expect to find
microscopic evidence of hemorrhage. He noted that
there was no
injury to the anal-rectal mucosa. On redirect
examination, Dr.
Peretti stated that anal dilatation and the bodies
being submerged
in water could have caused any sperm to be washed
away. He
explained that if there was attempted penetration, and
an objectdid not actually enter the anus, he would not
expect to find
lacerations. He also noted that there could be a
sexual attack
with no ejaculation and, therefore, no evidence of
sperm. He
further testified that the degree of lacerations and
trauma to the
anal area would be based on the size of the object
penetrating the
anus.
Baldwin's argument that the
State elicited an opinion from Dr.
Peretti that the boys had been sodomized is incorrect.
Rather, Dr.
Peretti, who was qualified as an expert in forensic
pathology,
testified regarding the condition of the bodies when
he received
them. His testimony was that the anuses were dilated
and had
reddening or congestion of the mucosa. When asked by
the State if
this condition was consistent with sexual trauma to
the anal area,
he answered that it would be consistent with that or
postmortem
relaxation and the fact that the bodies were in the
water. Dr.
Peretti simply explained the injuries and testified as
to possible
causation, consistent with his findings, as he was
qualified to do.
Whether to qualify a witness
as an expert is a matter left to
the discretion of the trial court and the trial court
will not be
reversed absent an abuse of discretion. Suggs v.
State, 322 Ark.
40, 907 S.W.2d 124 (1995). Dr. Peretti was qualified
as an expert
in forensic pathology without objection. Once a
witness is
qualified as an expert, any weaknesses in the bases
for his
opinions can be brought out on cross-examination, and
it is then
for the jury to determine the weight and credibility
to give the
testimony. Id. In the present case, Dr.
Peretti testified indetail regarding possible causes
of the dilatation of the anuses
and the congestion of the mucosa. Though Dr. Peretti
did not
testify that it was his opinion that the boys had been
sodomized,
any strengths or weaknesses in the argument that they
had been were
thoroughly explored through the direct and
cross-examinations of
him. The trial court did not err in allowing his
testimony
regarding the conditions of the victims' anuses and
the causes
consistent with the conditions.
Baldwin next argues that the
trial court erred in allowing Dr.
Peretti to testify that the victims had been forced to
perform oral
sex. Baldwin asserts that he objected to Dr. Peretti
expressing
this opinion prior to the testimony coming before the
jury. His
argument regarding Dr. Peretti's testimony as to oral
sex is
essentially the same as that he makes regarding sodomy
-- that Dr.
Peretti's opinion was mere speculation and conjecture.
Baldwin
contends that scientific evidence that would confirm
such an
opinion was absent; there were neither injuries to the
inside of
the mouths nor evidence of sperm in the mouths. The
State
correctly responds that Baldwin did not preserve this
point for
appeal because he neither moved in limine to exclude
Dr. Peretti's
opinion concerning whether the victims were forced to
perform oral
sex nor objected at trial to Dr. Peretti's testimony
on the
subject. In short, Baldwin failed to raise this issue
before the
trial court. In order to preserve an issue for appeal,
a specific
and timely objection must be made in the trial court,
apprising the
trial court of the appellant's arguments. Love v.
State, 324 Ark.526, 922 S.W.2d 701 (1996).
Having failed to object to Dr.
Peretti's testimony on evidence of oral sex before the
trial court,
Baldwin cannot raise the issue on appeal.
Even if Baldwin had objected
to this testimony, it was not
error for the trial court to allow it. Dr. Peretti
testified that
Michael Moore had injuries to the ears and the mouth
and that he
generally sees this type of injuries in children who
are forced to
perform oral sex. He also said that the injuries to
the mouth
could be caused by a punch or a slap. He noted that
Steve Branch's
injuries to his ears and mouth were similar to Michael
Moore's, as
were Christopher Byers's. Dr. Peretti, who was
qualified to
testify concerning the wounds of the victims and
causation,
testified that he generally saw the same type of
wounds in child
victims that were forced to perform oral sex. On
cross-examination, he testified that the boys could
have the external
injuries, with no internal injuries or presence of
sperm, and still
have been forced to perform oral sex. He opined that
if the oral
sex was forceful enough to cause the bruises to the
outside of the
mouth, he would think that there would be bruising to
the inside of
the mouth as well. Dr. Peretti's qualification as a
forensic
pathologist was not questioned; therefore, any
weaknesses in the
bases for his opinions concerning oral sex, as they
were developed
on cross examination, would go to weight and
credibility rather
than admissibility. Suggs, supra.
Baldwin asserts that the trial
court erred in allowing Dr.
Peretti to give his opinion that the sticks recovered
from thecrime scene were consistent with having caused
some of the victims'
wounds. Again, Baldwin argues that this testimony
concerning the
sticks was mere conjecture and speculation. Baldwin
bases this
argument on the fact that Dr. Peretti testified that
the sticks
could have caused the injuries, but a number of other
objects could
have caused them as well. Baldwin filed a motion in
limine
requesting that the State not be allowed to make any
reference to
the sticks without first laying an evidentiary
foundation out of
the hearing of the jury. He asserted that there was
nothing to tie
two of the sticks to the murders. At the hearing on
the motions in
limine, Baldwin made specific reference to allowing
Dr. Peretti to
testify that the injuries were consistent with having
been caused
by the sticks. The trial court denied the motion in
limine
regarding the sticks.
The State questioned Dr.
Peretti regarding the various
injuries to the victims and asked him whether the
injuries to the
victims' scalps that were consistent with being caused
by an object
the size of a broom handle could have been caused by
one of the
sticks that the State recovered from the crime scene.
Dr. Peretti
testified that the stick could have caused the injury.
The State
also asked whether the injuries caused by a larger
blunt object
could have been caused by the larger stick recovered
by the State
from the scene, and Dr. Peretti answered
affirmatively. On cross-examination, Dr. Peretti
testified that there were no wood
fragments on the bodies of the victims. He also
testified that he
would expect to find wood fragments, unless they were
washed off inthe water. He testified that the injuries
could have been caused
by hundreds of items other than the sticks recovered
at the scene.
It was not error for the trial
court to allow Dr. Peretti's
testimony. He testified in detail concerning the size,
shape, and
nature of the wounds and then opined that they could
have been
caused by the two sticks shown him by the State.
Baldwin argues
that Peretti gave an opinion based on mere conjecture
and asserts
that the foundation for an expert's opinion must not
be nebulous. However, Dr. Peretti gave a thorough
foundation for his opinion,
which was not that the sticks caused the injuries, but
that the
wounds were consistent with being caused by the
sticks. He also
testified that the wounds could have been caused by
other objects. It was for the jury to determine the
weight and credibility to give
his testimony concerning the sticks. Suggs, supra.
Baldwin's final argument
regarding Dr. Peretti's testimony is
that the trial court erred in allowing Dr. Peretti to
testify that
some of the victims' wounds could have been caused by
the knife
recovered from behind Baldwin's house. The State
responds that the
argument is not preserved for appeal because Baldwin
only objected
to Dr. Peretti testifying that some of Steve Branch's
injuries were
consistent with having been caused by the State's
knife. The State
then asserts that even if the argument is preserved,
the trial
court should not be reversed. From the record, it
appears that the
State is correct that Baldwin only objected to Dr.
Peretti
testifying that the injuries to Steve Branch depicted
in one
photograph could have been caused by the knife found
behindBaldwin's house and, therefore, waived any
broader argument on this
issue on appeal. However, it was not error for the
trial court to
allow Dr. Peretti's testimony regarding whether some
of the wounds
were consistent with having been caused by a knife of
the type
found behind Baldwin's house. He stated that pictures
of Steve
Branch's and Christopher Byers's wounds showed wounds
consistent
with having been caused by a knife with a serrated
blade. He
testified that he had previously examined the knife
recovered from
behind Baldwin's house and that he had examined the
serrated
pattern of some of the wounds that he found on all
three victims. He testified as follows:
Q. Okay. Did you find one
pattern on the three victims
that would be consistent with having been caused by a
knife with that type of serrated pattern?
A. There are injuries
consistent with a type of serrated
pattern.
On cross-examination, Dr. Peretti testified that he
had never
stated that the knife found behind Baldwin's house
caused the
injuries, but rather had said that a knife of that
type was
consistent with causing the injuries. He also
explained the
difference between the pattern left by knives with
large serration
and small serration, as well as the distortion in the
pattern that
is left, caused by the elasticity of the skin, the
angle of the
blade, and the reaction of the body that is being
scraped. Dr.
Peretti supported his opinion that some of the wounds
were
consistent with having been caused by the knife
recovered behindBaldwin's house with a factual
foundation. As previously
discussed, he was qualified as an expert on forensic
pathology, and
there is no question that he was qualified to testify
as to the
nature of the victims' wounds and the causes of the
wounds. Any
weaknesses in his opinion that some of the wounds were
consistent
with having been caused by the knife recovered from
behind
Baldwin's house went to weight and credibility, rather
than
admissibility. See Suggs, supra.
Echols argues that the trial
court erred in overruling his
objection to asking a leading question of Dr. Peretti. The
question, which was on redirect, was as follows:
Q. Okay. Now, Dr. Peretti, let
me -- Mr. Ford asked you
about these weapons, if you could say positively that
those weapons caused the injuries. And if I understand
your testimony yesterday, there was one weapon used on
these three boys that was a sharp object such as a
knife,
correct?
A. That's correct.
Mr.
Ford [Baldwin's attorney]: I'm going to
object to the leading. This is his witness. He is
leading his witness in an effort to rehabilitate
him.
The
Court: He is an expert witness. Go
ahead. Overruled.
Mr.
Davidson [Echols's attorney]: We join in
that objection.
The
Court: Overruled.
Q. There was one weapon that
was a sharp object such as
a knife?
A. That's right.
Even if the question were a
leading one, an issue we need not
decide, we would not reverse. Echols did not request a
sanction or
other relief when he objected. In Perry v. State,
277 Ark. 357,
642 S.W.2d 865 (1982), we wrote:
The state's attorney asked a
leading question and in
effect testified. This was error but it was not
prejudicial. Such matters are best handled by the
trial
court at the time of the improper statement or
question. There was no request by the appellant to
strike this
testimony nor that the jury be admonished. Therefore,
we
will not consider it on appeal. Id. at 374, 642 S.W.2d at 874. Similarly, even
if the question
here were a leading question, the error did not
constitute
reversible error.Echols next argues
that the trial judge commented on the
evidence when he asked defense counsel, "[A]re you
getting
somewhere with something that is relevant?" and "You
are going to
assure me of that?" The argument came about as
follows. One of
Echols's attorneys was questioning Gary Gitchell, an
inspector with
the West Memphis Police Department. He attempted to
show that the
police department failed to conduct the investigation
in a
creditable manner. The questions were designed to show
that theinterviews with Echols should have been
videotaped, that the photo
line-up should have been recorded and conducted
differently, that
the evidence was not suitably collected and handled,
that the tests
on a knife were inadequate, and that the audio
surveillance of
Vickie Hutcheson's house was inappropriate. The
attorney asked
Gitchell whether he could find the permission slip
allowing the
department to set up the audio surveillance. Gitchell
asked
whether counsel wanted him to try to find it and
counsel answered
yes. At this point, the trial court asked the two
questions about
whether counsel was getting to something that was
relevant. Echols's attorney answered in the
affirmative, and the trial court
said, "All right." After a bench conference, Echols's
counsel
asked Gitchell if he had found the permission slip.
Gitchell
answered no, and counsel asked if he would find it for
them. Echols's direct examination stopped at that
point.
The case of Warren v.
State, 272 Ark. 231, 613 S.W.2d 97
(1981), is on point. There, the trial court did not
know the
defendant's theory of defense. During a series of
questions by the
defense attorney, the State objected. The trial court
stated,
"What's puzzling me is what difference does it make? I
don't think
it's relevant is what I'm saying." Id. at 235,
613 S.W.2d at 99. After an in-chambers conference,
defense counsel was allowed to
continue with his line of questioning. In affirming
the lower
court, we wrote:
Article 7, § 23 of our
constitution states that judges
shall not "charge juries with regard to matters of
fact"and so precludes them from commenting on the
evidence.
The judge is not to influence the jury with regard to
the
credibility of witnesses or the weight to be given
their
testimony. The prohibition applies not only to
charges,
but to colloquies with lawyers in the jury's hearing.
Fuller v. State, 217 Ark. 679, 232 S.W.2d 988
(1950).
Clearly, if this inquiry into relevance could
influence
the jury in any manner, the case must be reversed, but
since the appellant was allowed to pursue the line of
questioning after the inquiry, we can see no possible
inference on credibility, weight to be given, or any
other matter. We hold the questioning into relevancy
did
not amount to a comment on the evidence. Id. at 234, 613 S.W.2d at 99.
Echols also argues that the
trial court's questions were in
rebuke of counsel, and, for that reason, we should
reverse. Our
case of Rogers v. State, 257 Ark. 144, 515
S.W.2d 79 (1974), is on
point on this argument. There, the prosecutrix in a
rape case
became upset during defense counsel's examination of
her. Defense
counsel stated to the court that the prosecutrix might
need a few
minutes to pull herself together. The trial court
replied, "Well,
you got her this way. Why don't you go ahead." Id.
at 152, 515
S.W.2d at 184. Defense counsel moved for a mistrial,
arguing that
the trial court's remark was "highly prejudicial." Id.
The trial
court denied the motion. On appeal, we affirmed the
conviction,
and stated:
Prejudicial error is not
committed by the court's remark
unless it constitutes an "unmerited rebuke" giving the
jury the impression that defense counsel is being
ridiculed. Davis v. State, 242 Ark. 43, 411 S.W.2d 531
(1967); McAlister v. State, 206 Ark. 998, 178 S.W.2d
67
(1944); Jones v. State, 166 Ark. 290, 265 S.W. 974
(1924). However, prejudice is not shown where the
record
reveals that the trial judge was merely irritated at
defense counsel's trial tactics. Walker v. Bishop, 408
F.2d 1378 (8th Cir. 1969). Although the better
practice,
as we have often said, is to talk to counsel out of
the
jury's hearing, we do not construe this remark as
ridiculing the appellant's counsel. The court merely
was
stating the obvious. By terse questioning on
cross-examination, the defense counsel was properly
attempting to weaken the prosecutrix's testimony as a
witness. The court's remark certainly did not relate
to
the merits of the case. At most, it could only be
construed as a mere irritation which "does not
constitute
reversible error whether the court's irritation was
justified or not." Walker v. Bishop, supra. Id. at 152-53, 515 S.W.2d at 84-85.
In the present case, the trial
judge asked about the relevancy
of the continued questioning and seemed to be
irritated with
counsel's tactics. Even so, the questions did not
constitute an
unmerited rebuke of the attorney.Baldwin argues that the
trial court erred when it denied his
request to cross-examine Michael Carson about drug and
alcohol use.
Michael Carson, who had been in juvenile detention
with Baldwin,
was called to testify that Baldwin told him he had
killed the three
boys, sucked blood from Chris Byers, and put Byers's
testicles in
his mouth. Carson also testified that Baldwin told him
he was
going to "kick Jessie Misskelley's ass" because he had
"messed
everything up." Baldwin sought to impeach Carson's
credibility by
asking him about a medical diagnosis that he was "LSD
dependent,
marijuana dependent, and alcohol dependent." Baldwin
did not make
an offer of proof, and we could affirm this point on
that basis. See Ark. R. Evid. 103(a)(2).
However, counsel made extensive
argument and obviously intended part of the argument
to be a
proffer. Baldwin argued to the trial court, without
any factual
statement, that the chemical dependency affected
Carson's ability
to distinguish between reality and fantasy. The trial
court
refused to allow the questioning, and stated that Ark.
R. Evid. 608
would allow impeachment with his juvenile
adjudications, which
Baldwin had already been allowed to do, but the court
was "bothered
by [the] desire to cross-examine him with regard to
specific acts
of misconduct involving drugs that may or may not
affect his
ability to recall." On appeal, Baldwin contends the
ruling was in
violation of Ark. R. Evid. 608 and the Confrontation
Clause of the
Constitution. He did not make the Confrontation Clause
argument to
the trial court; therefore, we do not consider it on
appeal. Even
constitutional arguments are waived when they are not
presented tothe trial court. Martin v. State,
316 Ark. 715, 875 S.W.2d 81
(1994).
Rule 608 of the Arkansas Rules
of Evidence provides that a
witness may be cross-examined with specific instances
of conduct,
if probative of the witness's character for
truthfulness. The rule
limits the inquiry on cross-examination to specific
instances of
conduct clearly probative of truthfulness or
untruthfulness. Rhodes v. State, 276 Ark. 203,
634 S.W.2d 107 (1982). There was no
showing that substance abuse relates to truthfulness
or
untruthfulness. Further, it does not appear that
Baldwin was
attempting to show that Carson was on drugs or
intoxicated when he
heard the statement. In fact, it was most likely
impossible for him
to show such facts, since Carson was in a juvenile
detention
facility when he heard Baldwin make the statement, and
he had been
for some time when he heard the statement. Although
the medical
diagnosis has not been abstracted, the questions and
statements of
the trial court indicate there was nothing in it to
show that
substance abuse had affected Carson's perception of
reality, or his
ability to tell the truth. Finally, the trial court
asked
Baldwin's attorney if he had a good-faith basis for
the questions,
and counsel never responded with any fact indicating
that the
alleged substance abuse went to truthfulness or
untruthfulness. The trial court applied the proper
tests, which are: (1) whether
the question is asked in good faith; (2) whether the
probative
value outweighs the possibility of unfair prejudice;
(3) whether it
relates to the witness's truthfulness. Mackey v.
State, 279 Ark.307, 651 S.W.2d 82 (1983). Under
these circumstances, we cannot
say that the trial court abused its discretion in
finding that the
evidence was not clearly probative of veracity and, as
such, would
have been unfairly prejudicial. See Maples v.
State, 16 Ark. App.
175, 698 S.W.2d 807 (1985).
Echols's next argument is that
the trial court erred in
allowing the State to make two cuts in a grapefruit
during closing
argument. The prosecuting attorney made one cut in a
grapefruit
with the serrated knife that the State recovered from
behind
Baldwin's residence, and then made another cut with
the knife that
defense counsel implied was used to cut the victims.
The second
knife had a regular blade. The prosecuting attorney
compared the
cuts in arguing that the cuts on Byers were like those
made by the
knife the State had introduced.
This point is governed by Hill
v. State, 289 Ark. 387, 713
S.W.2d 233 (1986). There, the appellant argued that
the trial
court erred in refusing to grant a mistrial or a new
trial because
the prosecutor argued outside the record and presented
evidence not
in the record. During his closing argument in the
penalty phase,
the prosecutor picked up a shotgun that was in
evidence and loaded
it with five shells in order to show that the gun only
held five
shells and to argue that the defendant had reloaded
his gun after
firing two shots at officers. The defendant made a
general
objection at trial and argued on appeal that there was
no proof
that the murder weapon in the case held only five
shells and that
the prosecutor had picked up the wrong gun. In
affirming the trialcourt, we stated:
Demonstrations
such as the one performed by the
prosecutor are permissible. We have allowed
prosecutors
to use items such as clothing, rope or documents by
way
of illustration in their closing arguments for many
years. SeeDerrick v. State, 92 Ark.
237, 122 S.W. 506
(1909); Tiner v. State, 109 Ark. 138, 158 S.W.
1087
(1913). Some leeway is given in closing remarks and
counsel are free to argue every plausible inference
which
can be drawn from the testimony. Abraham v. State,
274
Ark. 506, 625 S.W.2d 518 (1981). Nevertheless,
"[c]losing arguments must be confined to questions in
issue, the evidence introduced and all reasonable
inferences and deductions which can be drawn
therefrom."
Williams v. State, 259 Ark. 667, 535 S.W.2d 842
(1976).
The trial court has a wide latitude of discretion in
controlling the arguments of counsel and its rulings
in
that regard are not overturned in the absence of clear
abuse. McCroskey v. State, 271 Ark. 207, 608
S.W.2d 7
(1980).
Other
states have found permissible closing argument
where a prosecutor used "similar" material to a rope
used
to bind a victim to show that the victim might have
bound
himself, Collins v. State, 561 P.2d 1373
(Okla. Cr.
1977); where a live model and an unloaded pistol were
used to demonstrate that shots could not have been
firedin the manner claimed by the defendant, Herron
v.
Commonwealth, 23 K.L.R. 782, 64 S.W. 432 (1901);
where a
piece of crayon was used to show how the defective
muzzle
on a revolver could have deformed a bullet fired from
the
pistol, Russell v. State, 66 Neb. 497, 92 N.W.
751
(1902); where an attorney borrowed a gun from an
officer
in the courtroom to demonstrate the deceased could not
have inflicted a fatal wound upon herself, Peoples
v.
Commonwealth, 147 Va. 692, 137 S.E. 603 (1927);
and where
a toy gun was used to prove the fatal wound could not
have been inflicted as claimed, Barber v.
Commonwealth,
206 Va. 241, 142 S.E.2d 484 (1965). In the Barber
case
the Virginia court found it was within the sound
discretion of the trial court to determine whether the
use of the toy pistol should be permitted even though
the
toy was not shown to be the same size or type as the
murder weapon.
Likewise,
here the trial judge did not abuse his
discretion when he permitted the prosecutor's
demonstration with the shotgun. Id. at 393-94, 713 S.W.2d at 236. Comparably,
in the case now
before us, the trial court did not abuse its
discretion in allowing
the prosecutor in closing argument to compare the cuts
made by the
two knives.
Echols next argues that the
trial court erred when it
overruled his objection to a question asked Deanna
Holcomb. Thisargument comes about as follows. During
the State's case-in-chief,
Holcomb, who was Echols's former girlfriend, testified
that she had
seen Echols with a knife similar to the one found
behind Baldwin's
residence. The deputy prosecuting attorney asked her
if Echols
told her why he carried such a knife. Echols made a
general
objection, which the trial court overruled. Holcomb
answered that
Echols told her he carried the knife because he did
not feel safe.
We have written that a general
objection which was overruled
cannot avail upon appeal unless there was no reason
whatsoever to
admit the evidence, because the trial judge had no way
of knowing
what was in counsel's mind. Swanson v. State,
308 Ark. 28, 823
S.W.2d 812 (1992) (quoting United States v. Klein,
488 F.2d 481
(2d Cir. 1973)). On appeal, Echols argues that the
ruling was in
violation of Ark. R. Evid. 404(b), but he did not
advance such an
argument to the trial court. It is settled that a
party cannot
raise an issue for the first time on appeal. Id.
Even if it could
be said that the trial court should have sustained the
objection
under 404(b) or for any other reason, we would not
reverse, because
the alleged error could not have had a substantial
effect on the
rights of the defendant. Daniels v. State, 293
Ark. 422, 739
S.W.2d 135 (1987). Here, there was already ample
evidence that
Echols owned knives, and Holcomb did not testify that
Echols used
the knife, only that he carried it because he did not
feel safe.
The next argument comes about
as follows. Echols testified in
his own defense in the guilt-innocence phase of the
trial. On
cross-examination, the deputy prosecuting attorney
asked him if heknew of any reason why the two
witnesses might have fabricated the
statements that they overheard him say he committed
the murders. Echols objected on the ground that the
question shifted the burden
of proof. The trial court said that it was going to
allow the
prosecutor to ask Echols, "maybe not in the form you
asked him . .
. if he knows of any reason why they would have some
bias or
prejudice against him." The prosecutor then asked
Echols why the
two witnesses would take the stand and fabricate a
story about him.
Echols assigns the trial
court's ruling as error. We
disagree. The question did not change the burden of
proof, and
Echols did not ask for a limiting instruction on the
matter. The
question was designed to compare Echols's credibility
to that of
the two State witnesses, and that was appropriate. We
have often
held that when a defendant takes the stand in a
criminal case, his
credibility becomes an issue. Thomas v. State,
315 Ark. 518, 868
S.W.2d 85 (1994).
Also during cross-examination,
the State questioned Echols
about his manic-depressive illness, and whether it led
to an
incident in which he tried to claw the eyes out of a
student. After a lengthy bench conference, the trial
court ruled that it was
going to allow the prosecutor to ask Echols if he had
extreme mood
swings, but that Echols could not be asked about
specific instances
of conduct unless they were in close proximity to the
crimes for
which he was on trial. The State did not ask anything
more about
the incident in which Echols tried to claw the eyes
out of a
student. The prosecutor changed focus and asked if
Echols had analtercation with his father while they
were in Oregon, and if it
resulted in his immediate return to Arkansas. The
trial court
ruled that the question was proper to rebut Echols's
testimony that
he became violent only toward himself, but not toward
other people. The trial court noted that the incident
occurred within eight or
nine months of the crimes for which Echols was on
trial. Echols
testified that he had locked himself in his room in
Oregon,
threatened to commit suicide, was placed in a
hospital, and, when
his father came to visit him, told his father that he
would eat him
alive. As a result, he was immediately sent back to
Arkansas. Echols argues on appeal that the trial court
erroneously allowed
evidence of bad character when he had not put his
character at
issue.
The prosecutor's questions on
cross-examination had
independent relevance about Echols's medication, mood
swings, knife
collection, and quick return from Oregon. Further,
when Echols
responded on cross-examination that he did not become
violent
toward others when he was off his medication, the
prosecutor
properly brought up the incident with his father to
impeach his
truthfulness. While there are matters that cannot be
used against
an accused solely because he is a defendant,
these same matters can
be used against an accused when he becomes a witness.
3A John
Henry Wigmore, Evidence in Trials at Common Law
§ 889 (Chadbourn
rev. ed. 1976 & Supp. 1991). A witness always puts
his credibility
at issue when he takes the stand. McDaniel v.
State, 291 Ark. 596,
726 S.W.2d 679 (1986). Here, the question was
logically related tomatters Echols had brought up
himself -- his manic-depressive
illness and his immediate return to Arkansas. SeeShaver v. State,
37 Ark. App. 400, 830 S.W.2d 364 (1994).
Echols and Baldwin, in their
next argument involving
evidentiary rulings, contend that the trial court
erred in allowing
the State to call Dr. Duke Jennings, a pathologist, to
testify
about the time of the deaths. The argument comes about
as follows. Dr. Peretti, the forensic pathologist
first called by the State,
testified on direct examination that "I did not deal
with the issue
of time of death or mention that in my autopsy
report." However,
on cross-examination, he testified that, based upon
what he knew
about the case, and the rigor mortis of the bodies,
the time of the
deaths was between 1:00 a.m. and 5:00 a.m. on May 6,
1993. This
was different from the testimony he had given on
direct and
different from the testimony he gave in the Misskelley
trial, and
the testimony was a surprise to the State. On redirect
by the
State, he noted that rigor mortis can be delayed by
cool
temperatures, such as from being immersed in cool
water for twenty-four to thirty-six hours.
Five days later, but before
the State rested its case-in-chief, the deputy
prosecutor notified counsel for appellants that
the State would call another pathologist, Dr. Duke
Jennings, to
testify about the time of the deaths. At that time, at
a bench
conference, appellants objected on the ground that the
State had
not provided the name of Dr. Jennings as a witness.
The deputy
prosecutor responded that the State had not
anticipated calling Dr.Jennings because it had no
reason to think that Dr. Peretti would
change his testimony from that he gave in the
Misskelley trial. The trial court ruled: "I do not
know how you could anticipate a
witness that previously testified as to the same facts
and
circumstances would change his testimony. It seems
unfair." The
trial court said that it would allow Dr. Jennings to
testify about
the time of the deaths.
During the State's rebuttal
evidence, the State called Dr.
Jennings to testify about the time of death.
Appellants' counsel
asked the court whether the State was being allowed to
reopen its
case or if Dr. Jennings was a rebuttal witness. The
trial court
responded that it did not matter because it was
discretionary with
the court. Dr. Jennings testified that, based upon the
information
provided, there was no basis for a meaningful estimate
as to the
time of death. Both appellants assign as error the
ruling allowing
Dr. Jennings to testify.
The ruling of the trial court
was correct. The State could
not anticipate that Dr. Peretti would change his
testimony and on
cross-examination, give testimony that, when coupled
with other
evidence, would imply that Echols could not have
committed the
murders because he was at home asleep at the time of
the victims'
deaths. Thus, Dr. Jennings's testimony that it was
impossible to
estimate the time of death was in direct response to
the unexpected
estimate of time given by Dr. Peretti on
cross-examination. Since
the testimony was in response to testimony elicited by
the defense,
it was genuine rebuttal evidence, and the name of the
witness didnot have to be disclosed. Schalski v.
State, 322 Ark. 63, 67-68,
907 S.W.2d 693, 696 (1995).
Baldwin and Echols both insist
that the trial court erred in
allowing into evidence the knife with a serrated
blade. A diver
found the knife in a lake behind the Baldwin residence
on November
17, 1993. It was found forty-seven feet from the edge
of the water
and in line with the Baldwin's property line. There is
a fishing
pier directly behind the Baldwin mobile home, and the
knife was
found sticking blade-down in mud at the lake's bottom,
thirty-five
feet straight out from the pier. The knife was large
and had a
serrated edge, and it had the words "Special Forces
Survival Roman
Numeral Two" on the blade. Dr. Frank Peretti testified
that
numerous wounds found on the victims were made by a
serrated blade
and were consistent with, and could have been caused
by, such a
knife.
Deanna Holcomb, who was
Echols's girlfriend in 1991, testified
that she had seen him carrying a knife similar to that
one, except
that it had a compass on the end. James Parker, owner
of Parker's
Knife Collector Service in Chattanooga, Tennessee,
testified that
another knife company he had worked for distributed
this type of
knife from 1985-87. Through Parker's testimony, the
trial court
admitted a 1987 catalog from the other company, which
contained a
picture of a knife like the one found. That knife had
a compass on
the end, and it had the words "Special Forces Survival
Roman
Numeral Two."
When the State sought to have
the knife admitted, bothappellants objected on the
ground that there was nothing connecting
it to the crimes, such as blood, fingerprints, or
tissue, and it
was not connected to the crime scene. The trial court
overruled
the objections and stated that there were enough
circumstantial
links to allow its admission.
The argument is one of
relevance, and a trial court has
discretion in determining relevance. Miller v.
State, 280 Ark.
551, 660 S.W.2d 163 (1983). A trial court's ruling on
relevance
will be reversed only for abuse of discretion. Dixon
v. State, 311
Ark. 613, 846 S.W.2d 170 (1993). "When evidence on an
issue is
circumstantial, it is never irrelevant to put in
evidence any
circumstance which may make the proposition at issue
more or less
probable." Grigsby v. State, 260 Ark. 499,
506, 542 S.W.2d 275,
279 (1976). The State offered testimony that the knife
was like
the one Echols carried, that it was found forty-seven
feet behind
Baldwin's residence, and that it could have caused the
injuries. The evidence provided a link to the crimes
and made appellants'
identities more probable than without the evidence. Miller
v.
State, supra; see also Fountain v.
State, 275 Ark. 457, 620 S.W.2d
936 (1981); Ark. R. Evid. 401. Thus, the trial court
did not abuse
its discretion in admitting the knife.
Echols's and Baldwin's ensuing
argument is that the trial
court erred in admitting into evidence the two sticks
that were
found near the bodies of the victims. Police officers
found one of
the sticks stuck in the creek bed near the victims. It
had a shirt
belonging to one of the victims wrapped on the end
that was out ofthe water. This is the larger of the
two sticks. This stick
appeared in the photographs of the scene, which were
admitted
without objection, but it was not retrieved by
Detective Ridge
until Misskelley described the crimes. The smaller
stick was found
floating in the creek near the bodies and was
retrieved during the
initial crime-scene search.
Appellants both objected to
the introduction of the sticks on
the ground that there was no physical evidence that
either of them
was used as a murder weapon. The trial court overruled
the
objection and stated that they were relevant and
admissible because
one of the sticks was jabbed down in the water and had
the shirt
wrapped around it, the other was found near the
bodies, one
contained carving, and both had distinguishing marks
because it
appeared that someone had removed the bark. The court
noted that
the medical examiner testified that the victims' head
injuries were
consistent with blunt trauma similar to that which
would have been
caused by sticks like these.
Again, the trial court did not
abuse its discretion. SeeDixon v. State, 311 Ark. 613, 846 S.W.2d 170
(1993). The reasons
given by the trial court are sufficient to support its
ruling on
relevance.
Echols argues that the trial
court erred when it denied his
motion for a mistrial because of a statement that was
made during
his cross-examination of Officer Bryn Ridge. Echols's
counsel
asked Ridge about the crime scene and the stick found
there with
one of the victim's shirts wrapped around the end of
it. Histestimony revealed that the police left the
stick at the scene, but
retrieved it on July 1, 1993, after Jessie Misskelley
gave his
statement to police. When Echols's attorney asked him
about the
stick, he said, "No, sir, I did not take this stick
into evidence
until Misskelley's statement in which he said ...."
Echols
objected and asked for a mistrial because Ridge had
"blurted out"
that Misskelley confessed. The motion for a mistrial
was denied,
but the court instructed the jury to ignore the
statement. Echols
now contends that the trial court erred by refusing to
grant a
mistrial.
In Patrick v. State,
314 Ark. 285, 862 S.W.2d 239 (1993), we
held that an admonition was sufficient to cure any
possible
prejudice that resulted from an inadvertent reference
to a co-defendant's plea of guilty. There, the
response was to a
prosecutor's good-faith question. Here, Echols's
counsel asked the
question, so good faith is not at issue. Instead, the
only question
is whether the trial court abused its discretion in
ruling that the
admonition cured any possible harm. See id. at
288, 862 S.W.2d at
241. Echols has made neither a showing nor a
convincing argument
that the trial court abused its discretion in finding
that the
admonition was sufficient. We have often said that a
mistrial is
an extreme remedy that should only be granted when
justice cannot
be served by continuing the trial. Bennett v.
State, 297 Ark. 115,
759 S.W.2d 799 (1988).

Instruction Arguments

Both Echols and Baldwin
objected to the trial court giving theaccomplice
instruction. AMI Crim. 3d 401 (Accomplice). They
contend that there was no testimony that placed them
together on
the day of the crime, and, since the jury was
instructed to
consider the evidence against each defendant
separately, an
accomplice instruction was precluded. The trial court
correctly
gave the instruction because there was evidence from
which the jury
could reasonably find that both defendants said they
killed the
children; fibers from clothing found in both
defendants' homes were
similar to fibers found on the victims' clothing; the
description
of the person identified as Domini Teer, who was seen
with Echols
the night of the murders, also fit the description of
Baldwin, who
was also very thin and had long hair; Echols and
Baldwin were best
friends and spent two or three hours together a day; a
knife
similar to one Echols had owned was found near
Baldwin's residence;
sticks similar to the ones both had been seen carrying
previously
were found at the scene; two different types of knots
were used to
tie the victims; there were three victims, and there
was sufficient
evidence from which a jury could have concluded that
the murders
were not committed by one person.
We have said that if there is
some evidence to support an instruction, it is
appropriate for a
trial court to give it. Mitchell v. State, 306
Ark. 464, 862
S.W.2d 254 (1993).

Capital Punishment Arguments

Echols asks us to reconsider
our holding in Wilson v. State,
271 Ark. 682, 611 S.W.2d 739 (1981), and to declare
the deathpenalty to be cruel and unusual punishment.
We adhere to our prior
holdings. In Sheridan v. State, 313 Ark. 23,
852 S.W.2d 772
(1993), we rejected the defendant's argument that the
death penalty
was cruel and unusual punishment and stated that both
this court
and the United States Supreme Court have held that the
death
penalty is not cruel and unusual punishment. In Wilson
v. State,
the case referred to by Echols, we rejected the
defendant's
argument that life without parole was cruel and
unusual punishment
and stated that it has long been this court's holding
that
sentencing within the statutory limits is not cruel
and unusual
punishment.
Echols's next argument
involves the statutory overlap between
the elements of capital murder and first-degree
murder. In this
argument his initial predicate is that there is no
clear difference
between the elements of capital murder, Ark. Code Ann.
§ 5-10-101
(Repl. 1993), and the elements of first-degree murder,
Ark. Code
Ann. § 5-10-102 (Repl. 1993). His next step in
the argument is to
state that the prosecutor has discretion in choosing
whether to
file a capital murder charge or a first-degree murder
charge, and,
if capital murder is charged, the jury is then left to
speculate
about the degree of offense to which it should affix a
finding of
guilt. The final step in the argument is that it is
not until the
penalty phase of the trial, after the jury has already
determined
the defendant to be guilty of capital murder, that the
jury
considers aggravating or mitigating circumstances. We
have already
answered this argument, and we adhere to our prior
holding.
In Nooner v. State,
322 Ark. 87, 907 S.W.2d 677 (1995), we
said:
Nooner
raises the spectre of unconstitutional
overlapping between our capital murder statute and
first
degree murder statute in that the two statutes blur
and
proscribe the same conduct. According to his theory,
the
statutes do not give proper notice of the criminal
offenses and are void for vagueness. This court has
discounted this argument on numerous occasions. See,
e.g., Greene v. State, 317 Ark. 350,
878 S.W.2d 384
(1994); Sanders v. State, 317 Ark. 328, 878
S.W.2d 391
(1994); Buchanan v. State, 315 Ark. 227, 866
S.W.2d 395
(1993); Mauppin v. State, 309 Ark. 235, 831
S.W.2d 104
(1992); Van Pelt v. State, 306 Ark. 624, 816
S.W.2d 607
(1991); Smith v. State, 306 Ark. 483, 815
S.W.2d 922
(1991). Id. at 105-06, 907 S.W.2d at 687. In Nooner,
this court also
explained that it was acceptable for the jury to not
consider
aggravating and mitigating circumstances until the
penalty phase of
the trial. The court stated:
Nooner
argues that the definition of capital murder
does not sufficiently narrow the crime for which the
death penalty can be imposed. He specifically alludes
to
overlap between definitions of capital murder and
first
degree murder, which we have already discussed. The
United States Supreme Court has held that the
requirednarrowing of crimes susceptible to the death
penalty may
occur at the penalty phase of the trial. Lowenfield
v.
Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed.
568
(1988). This court has previously held that our
statutes
pass the narrowing requirement by limiting the death
penalty to crimes involving sufficient aggravating
circumstances. See Sheridan v. State, supra.
There is
no merit to Nooner's contention. Id. at 107, 907 S.W.2d at 687-88.
In Echols's next point, he
initially states that Ark. Code
Ann. § 5-4-603 (Repl. 1993), requires the jury to
impose the death
sentence if it unanimously returns certain written
findings. From
that predicate he argues that the instruction quoting
the statute
is binding, and a binding instruction is unlawful.
Finally, he
asserts that if the statute were declared
unconstitutional, there
would be no need to qualify a jury for the death
penalty. Again,
the argument is without merit.
Section 5-4-603 of the
Arkansas Code Annotated provides in
pertinent part:
(a)
The jury shall impose a sentence of death if it
unanimously returns written findings that:
(1)
Aggravating circumstances exist beyond a
reasonable doubt; and
(2)
Aggravating circumstances outweigh beyond a
reasonable doubt all mitigating circumstances found to
exist; and
(3)
Aggravating circumstances justify a sentence of
death beyond a reasonable doubt.
(b)
The jury shall impose a sentence of life
imprisonment without parole if it finds that:
(1)
Aggravating circumstances do not exist beyond a
reasonable doubt; or
(2)
Aggravating circumstances do not outweigh beyond
a reasonable doubt all mitigating circumstances found
to
exist; or
(3) Aggravating circumstances
do not justify a
sentence of death beyond a reasonable doubt.
Ark. Code Ann. § 5-4-603(a) & (b) (Repl.
1993).
In Hill v. State, 289
Ark. 387, 713 S.W.2d 233 (1986), cert.
denied, 479 U.S. 1101 (1987), we held that Ark.
Code Ann. § 5-4-603
does not require a mandatory death sentence, but
rather provides
specified criteria that must be fully satisfied before
the death
sentence can be imposed. More recently, in Nooner
v. State, 322
Ark. 87, 907 S.W.2d 677 (1995), we held:
Nooner
maintains that our sentencing statutes demand
a death sentence and eliminate consideration of mercy
by
the jury. See Ark. Code Ann. § 5-4-603
(Repl. 1993). We
have previously held that this is not the case. SeeCox
v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Sheridan
v.
State, 313 Ark. 23, 852 S.W.2d 772 (1993); Henderson
v.
State, 311 Ark. 398, 844 S.W.2d 360 (1993); Johnson
v.
State, supra. We have underscored that
our statuteprovides that a jury is free to sentence to
life without
parole if it finds the aggravating circumstances do
not
"justify" death. See Ark. Code Ann. §
5-4-603(b)(3)
(Repl. 1993). There was no error on this point. Id. at 106-07, 907 S.W.2d at 687. The wording
of Ark. Code Ann. §
5-4-603 and our case law applying the statute make it
clear that
the statute does not contain a binding instruction.
Consequently,
the trial court did not err in denying Echols's motion
to declare
Ark. Code Ann. § 5-4-603 unconstitutional.
Echols contends that
Ark. Code Ann. § 5-4-604(8) (Supp. 1995)
is unconstitutionally vague because it provides that
the jury can
find an aggravating circumstance upon a finding that a
murder was
committed in an "especially cruel or depraved manner".
In his
argument, he first notes that the prior statute, which
provided
that the jury could consider the "heinous, atrocious
or cruel"
nature of the crime was struck down by this court in Wilson
v.
State, 295 Ark. 683, 751 S.W.2d 734 (1988) as
being overbroad
because it did not provide a clear standard to
distinguish between
ordinary and "especially cruel" capital murders. He
then states
that we have not reviewed the statute since it was
amended, and
that the "cruel and depraved" language does not
provide a genuine
narrowing of the types of persons deserving a life
sentence from
those eligible for the death penalty. In addition to
arguing that
the statute is unconstitutional on its face, Echols
argues that it
is unconstitutional as applied to him because "there
is
insufficient evidence that he inflicted serious
physical abuse ordid so for a considerable period of
time" before killing the three
boys, and that there "is insufficient evidence that
establishes
that Echols intended to inflict mental anguish or did
so prior to
any killing."
Pursuant to Ark. Code Ann.
§ 5-4-603, the death penalty cannot
be imposed unless the State can prove the existence of
an
aggravating circumstance. In the present case, the
jury found the
aggravating circumstance that the murders were
committed in an
especially cruel or depraved manner. Section 5-4-604
provides the
following regarding "an especially cruel or depraved
manner":
Aggravating circumstances
shall be limited to the
following:...
(8)(A) The capital murder was
committed in an especially
cruel or depraved manner.
(B) For purposes of this
subdivision (8), a capital
murder is committed in an especially cruel manner
when,
as part of a course of conduct intended to inflict
mental
anguish, serious physical abuse, or torture upon the
victim prior to the victim's death, mental anguish,
serious physical abuse, or torture is inflicted.
"Mental
anguish" is defined as the victim's uncertainty as to
his
ultimate fate. "Serious physical abuse" is defined as
physical abuse that creates a substantial risk of
death
or that causes protracted impairment of health, or
loss
or protracted impairment of the function of any
bodilymember or organ. "Torture" is defined as the
infliction
of extreme physical pain for a prolonged period of
time
prior to the victim's death.
(C) For purposes of this
subdivision (8), a capital
murder is committed in an especially depraved manner
when
the person relishes the murder, evidencing debasement
or
perversion, or shows an indifference to the suffering
of
the victim and evidences a sense of pleasure in
committing the murder.
Ark. Code Ann. § 5-4-604(8) (Supp. 1995).
In Willett v. State,
322 Ark. 613, 911 S.W.2d 937 (1995), we
addressed the defendant's argument that the statutory
definition of
the aggravating circumstance of "especially cruel or
depraved" was
void for vagueness on its face and as applied to him.
The
defendant claimed that the definitions did not provide
clear and
objective standards to the jury. We rejected the
arguments and
held:
The
General Assembly rewrote this aggravating
circumstance in Act 683 of 1991 after this court
declared
in Wilson v. State, 295 Ark. 682, 751 S.W.2d
734 (1988),
that its statutory predecessor was unconstitutional in
violation of the Eighth and Fourteenth Amendments to
the
federal constitution. The 1991 statutory amendment
includes language substantially similar, if not
identical, to language upheld as constitutional by the
United States Supreme Court in Walton v. Arizona,
497U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511
(1990). Greene, 317 Ark. 350, 878 S.W.2d 384.
For the reasons
stated by the Supreme Court in Walton, our statute is
therefore not void on its face. Id. at 629, 911 S.W.2d at 945. See alsoJohnson v. State, 326 Ark.
430, ___ S.W.2d ___ (1996). Thus, the trial court
correctly denied
Echols's motion to hold Ark. Code Ann. §
5-4-604(8)
unconstitutional.
Moreover, the statute is not
unconstitutional as applied to
Echols. In the present case, the jury was instructed
on cruel and
depraved manner as follows:
For
definition purposes, cruel manner is defined: A
capital murder is in an especially cruel manner when
as
a part of a course of conduct intended to inflict
mental
anguish, serious physical abuse or torture upon the
victim prior to the victim's death, mental anguish,
serious physical abuse or torture is inflicted.
Mental
anguish is defined as the victim's
uncertainty as to his ultimate fate.
Serious
physical abuse is defined as physical abuse
that creates a substantial risk of death or that
causes
protracted impairment of health or loss or protracted
impairment of the function of any bodily member or
organ.
Torture
is defined as the infliction of extreme
physical pain for a prolonged period of time prior to
the
victim's death.
Depraved
manner is defined as a capital murder is
committed in an especially depraved manner when the
person relishes the murder, evidencing debasement or
perversion or shows an indifference to the suffering
of
the victim and evidences a sense of pleasure in
committing the murder.
There was substantial evidence to support the jury's
determination
that the murders were committed in an especially cruel
or depraved
manner. At least one of the victims had defensive
wounds. The
autopsy revealed that two of the victims died by
drowning, but that
their head wounds were so severe that they would have
died from
them if they had not drowned. There was evidence that
these two
victims were tortured before they drowned. The third
victim bled
to death.

Echols contends that the death
penalty imposed on him is out
of proportion to his conduct and is, therefore, cruel
and unusual
punishment under the Eighth Amendment. He argues that
a
proportionality review is a requirement under Arkansas
law and that
his death sentence should be compared to other death
sentences in
Arkansas and, in particular, to Baldwin's sentence to
life without
parole. He contends that we might infer aggravating
circumstances
from the nature and extent of the wounds, but argues
that
mitigating circumstances outweigh aggravating
circumstances. Finally, in this argument, he contends
that when his death sentence
is compared to the life sentences of Baldwin and
Misskelley, the
death sentence was "freakishly and arbitrarily
applied."
In Willett v. State,
322 Ark. 613, 911 S.W.2d 937 (1995), we
stated that we would no longer conduct proportionality
reviews of
death sentences and cited Williams v. State,
321 Ark. 344, 902
S.W.2d 767 (1995) for the reasons. In Williams,
we wrote:
The
state has asked this court to conduct a
proportionality review which we have done in the past.
SeeSanders v. State, 317 Ark. 328, 878
S.W.2d 391
(1994); Parker v. State, 300 Ark. 360, 779
S.W.2d 156
(1989); Hill v. State, 289 Ark. 387, 713
S.W.2d 233
(1986). Comparative proportionality review is not
constitutionally mandated in every case where the
death
sentence is imposed. Pulley v. Harris, 465
U.S. 37, 104
S. Ct. 871, 79 L. Ed. 2d 29 (1984). Our Legislature,
by
enacting recent sentencing procedures, has provided a
statutory check on arbitrariness by requiring a
bifurcated proceeding where the jury is provided with
information on aggravating and mitigating
circumstances,
and with standards in the use of that information. See
Ark. Code Ann. §§ 5-4-103, 5-4-603 -- 605
(Repl. 1993). Additionally, our review upon appeal
includes a review of
the aggravating and mitigating circumstances presented
to
the jury and a harmless error review of the jury's
findings. See § 5-4-603. Id. at 352-53, 896 S.W.2d at 772.

Miscellaneous Arguments

Echols states that at the time
he filed his brief, the Statehad not paid his
attorneys. He argues that the State's failure to
pay his attorneys violates his right to counsel, due
process, and
equal protection. Consequently, he contends, his
capital murder
convictions and death sentences should be reversed and
remanded or
dismissed. In his argument, he incorporates by
reference State v.
Crittenden County, 320 Ark. 356, 896 S.W.2d 881
(1995), which
concerns the payment of attorneys' fees in this case.
Echols does
not support his argument with any citation of
authority or
convincing argument that his conviction should be
reversed for
failure by the State to pay attorneys' fees by the
time his brief
was filed. We could summarily dismiss the point for
failure to
cite authority, or make a convincing argument. In Williams
v.
State, 325 Ark. 432, ___ S.W.2d ___ (1996), we
held:
We do
not reach the merits of many of these
arguments because they are all essentially
one-sentence
assertions with no citation to supporting authority
and
without explanation as to how the cited portions of
the
constitutions have been violated. We do not consider
an
argument, even a constitutional one, when the
appellant
presents no citation to authority or convincing
argument
in its support, and it is not apparent without further
research that the argument is well-taken. Roberts
v.
State, 324 Ark. 68, 919 S.W.2d 192 (1996). Id. at 439, ___ S.W.2d at ___.
However, the penalty in this
case is death, and we prefer to
reach the merits of the argument. In Patterson v.
State, 306 Ark.385, 815 S.W.2d 377 (1991), the
defendant contended on appeal that
the "fee cap" statute limiting the amount paid to his
appointed
counsel was unconstitutional. We explained that we had
previously
held that the statute limiting the amount of fees that
can be paid
to attorneys appointed to represent indigent
defendants was
unconstitutional. We then held that we would not
reverse a
conviction on the basis of the constitutional
inadequacy of the
attorney's fee absent a showing that the defendant was
prejudiced
by the inadequacy of the fee. Here, there was no
showing that
Echols was prejudiced in any manner by the State's
failure to pay
his attorneys' fees by the time he filed his brief in
this court. Echols and Baldwin
next argue that the trial court committed
cumulative reversible error. However, neither has
preserved a
cumulative-error argument because neither argued the
issue to the
trial court. Witherspoon v. State, 319 Ark.
313, 891 S.W.2d 371
(1995). Baldwin concedes in his reply brief that he
did not make
the required objection. Echols's arguments center
around various
comments made by the trial court. Because of the
sentences in
these cases, it has been necessary to make a review of
all rulings
adverse to appellants, and we note that Echols did not
object to
any of the individual comments he complains about in
this point. Even under Rule 4-3(h) of the Supreme
Court, we do not employ the
plain-error rule. Childress v. State, 322 Ark.
127, 907 S.W.2d 718
(1995).
Baldwin next argues that the
trial court committed error by
having contact with the jury, and erred in refusing to
grant amistrial. The situation here came about as
follows. After the
guilt phase of the trial was completed, but before the
penalty
phase had begun, Echols's attorneys learned that the
jury foreman's
daughter had received a death threat. They also
learned that
another juror had received a threatening phone call.
The trial judge stated that he
was aware of the call to a
juror because she had told him about it. The judged
stated that he
asked the juror if the call would affect her in any
way, if she
wanted to be excused from the jury, and if she wanted
a monitor
installed on her phone. She answered "no" to all. The
judge
stated that he questioned the foreman, who responded
that neither
he nor his family had received a direct threat but
that there was
something "indirect" that had happened. The judge did
not to ask
him to be more specific. The foreman said he had had
about a "ten
second" discussion with the other jurors about the
"indirect"
matter, but that it was not brought up during
deliberations and was
never mentioned again. He said it did not affect his
ability to
render a fair and impartial verdict.
After the penalty phase and in
the presence of counsel, the
trial court questioned the juror, who confirmed that
she had
received a prank call, had reported it to the court,
and had told
the court it would not affect her deliberations.
Another juror
verified that the court had instructed the entire jury
to notify
him or the bailiff if they should be threatened in any
way. The
court then polled the jury, and each juror stated that
their
deliberations had not been affected, that these things
had not beendiscussed during deliberations, and that
no other threats had been
discussed during deliberations.
Baldwin contends the trial
court erred by having contact with
the jury and not granting a mistrial. We have often
written that
a mistrial is an extreme remedy that should only be
granted when
justice cannot be served by continuing the trial. Bullock
v.
State, 317 Ark. 204, 876 S.W.2d 579 (1994). A
trial court's
exercise of discretion will only be reversed when it
is abused. Stanley v. State, 317 Ark. 32, 875
S.W.2d 493 (1994). In matters
involving impartiality of jurors, we have consistently
deferred to
the trial court's opportunity to observe jurors and
gauge their
answers in determining whether their impartiality was
affected. Holland v. State, 288 Ark. 435, 706
S.W.2d 375 (1986). When the
record reflects that the trial court received
assurance from jurors
that they could maintain their objectivity, we have
held that
refusal to grant a mistrial rests on solid footing. Clayton
v.
State, 321 Ark. 602, 906 S.W.2d 290 (1995).
Thus, the trial court
did not abuse its discretion in refusing to grant a
mistrial.
The trial court did commit
error in initially discussing the
matters with the foreman and the juror out of the
presence of
counsel, but the trial court subsequently notified
counsel that the
discussions had taken place, and then had counsel
present when the
jurors were questioned. Thus, there was no prejudice.
Baldwin next contends that the
trial court erred in granting
an ex parte continuance to the State. The
argument is based on the
following facts. During Baldwin's defense, the
prosecutor informedthe trial court that he found a
necklace that Echols was wearing
when arrested, noticed some red spots on it, and sent
it to the
crime laboratory for testing, which confirmed that the
spots were
blood. After the State's rebuttal, the prosecutor
stated that he
wanted to reserve the right to reopen the next day if
the testing
was complete. The court reconvened two days later, on
a Thursday,
and the prosecutor reported that the laboratory had
found that one
spot of blood was consistent with the blood of Echols,
one was
consistent with Baldwin, and one was consistent with
Steve Branch. The prosecution asked to reopen the
State's case, subject to
appellants' ability to contact an expert witness.
Appellant
argued, among other things, that the break in the
trial had been
the result of an ex parte continuance between
the prosecutor and
the trial court.
The court asked Baldwin what
remedy he wanted, and if he
wanted a mistrial. Baldwin said he would decide after
the jury was
polled about how they got the information about the
continuance and
whether they knew of the reason for the continuance.
After a
break, the prosecutor stated to the court that the
State understood
that a mistrial would be granted as to Baldwin if the
State
persisted in the necklace evidence; therefore, the
State did not
want to reopen the case.
Baldwin's counsel informed the
trial court that it would be
fine to poll the jury at large. When asked if any of
them had
learned the reason the continuance was necessary, they
answered,
"No." The trial court also inquired as to whether the
jury hadgained any information from any outside source
and whether they had
followed the court's instructions. The jurors
responded that they
had followed the court's instructions.
Baldwin's argument on appeal
is that the trial court should
have denied the continuance because the prosecutor did
not file an
affidavit as required by Ark. Code Ann. §
16-63-402(a). This
argument was not made to the trial court, and we will
not consider
it for the first time on appeal. Moreover, the record
indicates
that Baldwin got the relief he requested, polling the
jury, and
that, in any event, he did not suffer prejudice
because the
necklace and the evidence about the blood was not put
before the
jury. SeeDumond v. State, 290 Ark.
595, 721 S.W.2d 663 (1986);
Goldsmith v. State, 301 Ark. 107, 782 S.W.2d
361 (1990).
Baldwin next argues that the
State of Arkansas, through the office of the
prosecuting attorney, was guilty of such misconduct
that it necessitates reversal of the convictions and
new trials. He contends that the office of prosecuting
attorney was guilty of
the following: (1) abuse of subpoena power; (2)
failure to disclose
Dr. Duke Jennings as a witness; (3) failure to
disclose the search
of Echols's personal effects while in jail and failure
to notify
appellants that it would introduce evidence of
Echols's "doodling"
Baldwin's name; (4) conducting ex parte
communications regarding a
continuance; (5) conducting a demonstration with a
knife cutting a
grapefruit during closing. This opinion has already
discussed each
of the allegations and held they were without merit
excepting the
alleged abuse of the prosecutor's subpoena powers.
Accordingly, indiscussing this point of appeal, we
discuss only the alleged abuse
of subpoena powers.
Baldwin contends that the
prosecutor used his subpoena power
in violation of the authority granted by Ark. Code
Ann. § 16-43-212
(Repl. 1994). The prosecutor's
subpoena power granted under the
statute was passed by the General Assembly to
implement the power
of prosecutors to bring criminal charges by
information. Cook v.
State, 274 Ark. 244, 623 S.W.2d 820 (1981). It
was designed to
take the place of questioning by a grand jury. Kaylor
v. Fields,
661 F.2d 1177 (8th Cir. 1981). The emergency clause to
the statute
states that it was enacted to enable prosecutors to
"properly
prepare criminal cases." Cook v. State, 274
Ark. at 248, 623
S.W.2d at 822. The prosecutor may use the subpoena
power to
investigate and prepare for trial as long as the power
is not
abused. Todd v. State, 283 Ark. 492, 678
S.W.2d 345 (1984). However, we will reverse a case in
which a prosecutor abuses the
subpoena power. Foster v. State, 285 Ark. 363,
687 S.W.2d 829
(1985); Cook v. State, 274 Ark. at 249, 623
S.W.2d at 823. Baldwin
has made no showing of abuse. All he proved is that
the prosecutor
subpoenaed three witnesses, who did not testify at
trial, and
subpoenaed his school records. The trial court found
that the
subpoenas were for investigation and preparation and
did not amount
to an abuse of the power. The finding was not in
error.
On March 29, 1994, Baldwin
filed a motion for new trial
"pursuant to Rule 59 of the Arkansas Rules of Civil
Procedure." In
addition, Baldwin filed a motion requesting Judge
Burnett todisqualify so that "an impartial court could
determine whether or
not the prosecution was guilty of misconduct in said
ex parte
conversation." Judge Burnett issued an order on April
22, 1994,
denying the hearing, the motion for recusal, and the
motion for
mistrial. On appeal, Baldwin argues that he should
have been
granted a hearing pursuant to Ark. R. Crim. P. 36.22
and that Judge
Burnett should have recused because the matter
involved factual
disputes regarding his conduct.
Baldwin's motion stated that
it was filed pursuant to "Rule 59
of the Arkansas Rules of Civil Procedure." He advances
his argument
that the trial court was required to hold a hearing
under Ark. R.
Crim. P. 36.22 for the first time on appeal, and a
party cannot
raise an argument for the first time on appeal. Even
had it been
argued, he would not be entitled to a new trial solely
because he
did not get a hearing. Turner v. State, 325
Ark. 237, 926 S.W.2d
843 (1996). Similarly, the disqualification motion is
without
merit. The decision to disqualify is within the trial
court's
discretion, and we will not reverse the exercise of
that discretion
without a showing of abuse. An abuse of discretion can
be shown by
proving bias or prejudice. Id. Baldwin has
shown neither bias nor
prejudice.
In accordance with Rule 4-3(h)
of the Rules of the Supreme
Court, the record has been reviewed for rulings
adverse to both
appellants, but not argued on appeal, and no
reversible errors were
found.